CONSTITUTIONALITY OF TALAQ

Talaq is one of the modes of dissolution of marriage available to Muslim men. In the literal sense, it is setting free or letting loose and in Muslim law it means freedom from bondage of marriage. It is of three kinds: Talaq-e-Ahsaan, Talaq-e-Hasaan and Talaq-e-Biddat. In first two cases there is always a limited period called iddat period for reconciliation where Talaq can be revoked but in case of Talaq-e-Biddat which is also known as triple Talaq, Talaq becomes irrevocable immediately after the pronouncement.

These are the modes available only to men where they can repudiate the marriage unilaterally at their own whims without assigning any reason. This can be pronounced even in the absence of wife in front of witnesses or in any other manner where husband uses the appropriate words conveying the intention to get separated. There are instances where Talaq has been pronounced through SMS, Skype etc and there is no legal recourse available to the wife as this has been legalized under section 2 of Muslim personal law (Shariat) application act which says that Muslim personal law be applied in case of dissolution of marriage.

Primary sources of Muslim personal law are Quran and Sunnah of Prophet Mohammed. Islamic law regarding Talaq is based on the Hadith –Sahih Muslim (9: 3493) and interpretation of 2:228, 2:229 and 2:230 of the holy Quran. Nowhere in these verses is irrevocable Talaq mentioned. Many people view that triple Talaq is misinterpretation of these verses.

Hadiths are the reports describing the words, actions or habits of prophet Mohammed. Sahih muslim (9: 3493), one of several hadiths says that during the caliphate of Umar, people began to pronounce Talaq frequently, he allowed them to do so (to treat pronouncements of three Talaqs in a single breath as one). This was done because soldiers who wanted to marry Syrian women were asked to divorce their wives in order to marry them and they immediately pronounced talaaq for 3 times in one go. Umar, the caliphate when got to know about this made it irrevocable as he felt that people are mocking with the religious principles as it can be revoked within the iddat period. So whole essence of making the Talaq irrevocable is to prevent its misuse and this is what is happening in the present society.”Law is dynamic and its meaning cannot be pedantic but purposeful.”

Muslim women can neither question the pronouncement of talaaq by their husbands nor can pronounce it.  Under dissolution of Muslim marriage act 1939, ten grounds have been given under which they can file petition for divorce and justify the grounds in court of law. Thus Talaq is against gender justice and equality between men and women.

This is not only in conflict with the principle of natural justice but also violates the articles 14, 15 and 21 of the Indian constitution which talk about right to equality, prohibition of discrimination on the basis of sex and right to life and personal liberty respectively.

Even according to Quran wife should go to Darul qaza and prove atrocities committed by husband against her whereas he can pronounce Talaq on whimsical grounds which violates right to equality and also discriminates between men and women as the marriage which is entered at the will of both is ended unilaterally.

This arbitrariness and whimsicality of the act results in women living at the mercy of men curtailing their right to life and personal liberty.

Article 13 of the constitution says that any law that is in derogation of the fundamental rights is void to the extent of inconsistency and this mode of divorce violates fundamental rights of Muslim women and is unconstitutional.

In a case, Allahabad high court held that “Personal laws, of any community, cannot claim supremacy over the rights granted to the individuals by the Constitution.

The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict evil instant divorce does not accord with Islamic injunctions.

The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him.

 If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously”.

Unless Supreme Court rules that these laws are violative of fundamental rights mere observation that these are unconstitutional means nothing and as there is no procedure describing the Muslim men to approach the court for divorce, court should also clarify under which law he can approach the court if Talaq is declared unconstitutional. Talaq shouldn’t be used arbitrarily against women, court after hearing both the parties should declare the date of delivery of Talaq.

Suvarshitha, 2nd year, ICFAI Law School.

REMOVAL OF DIRECTOR: CRITICAL ANALYSIS OF CYRUS MISTRY-TATA SONS TRAGEDY

The path to the debate is divided into two major parts. Removal of the director by the board of directors and removal by Shareholders. The board had already passed the no-confidence motion against Cyrus Mistry for his removal. On the other hand, Tata Group had already called shareholders’ meeting regarding this. Recently, National Company Appellate Law Tribunal has rejected Cyrus Mistry’s appeal, filed against Tata Sons for Tata Sons calling Shareholders’ meeting on February 6, 2017 for his removal from his post of directorship. Cyrus Mistry, the largest shareholder of Tata Group holding 18.5% shares, was sacked by Tata Sons as its group chairman and Ratan Tata was reinstated as interim chairman. The motion to request Cyrus Mistry to step down from the directorship was moved on 15 October, 2016 on the ground that the Trust had lost confidence in Cyrus Mistry for variety of reasons.[1] Cyrus Mistry knocked the doors of appellate tribunal after the NCLT cleared way for Extraordinary General Meeting. There are different views regarding the legality of the removal. On one hand, the alleged victim states that his removal was illegal, the same manner in which Nusli Wadia, the only independent director Tata Sons had sought to remove, claimed that he had been targeted for his independence of mind and action[2] and considered his appointment as unwise by some on the other. However, before debating the issue, little background is necessary for understanding the picture.

The company is running from the money of all the retail investors and shareholders. Therefore, at the end of the day, all directors are answerable to those shareholders. It has been held through the provisions as well as various judicial precedents that right to remove a director is an inalienable right provided to shareholders. It is not necessary that there should be any proof of any mismanagement, breach of trust, misfeasance or other misconduct on the part of the director.[3] This right cannot be taken away by any MOA or AOA or any other documents or agreement of or by the company. The shareholders can remove a director by passing an ordinary resolution in the same manner they as they have the right to appoint the director. Shareholders are required to furnish a special notice[4] regarding removal of a particular director at least before 14 days of the meeting in which the resolution is supposed to be moved. The Kerela High Court has held in the case of Queens Kuries and Loans (P.) Ltd. vs. Sheena Jose & Ors.[5] that the notice must depict the grounds on which the director is proposed to be removed. However, according to the provision only shareholders holding not less than 1% of total voting power or holding shares on which an aggregate sum of not less than Rs. 5 Lacs has been paid up as on the date of notice. Shareholders are not required to state any reason in explanatory statement for removal of the director.[6] However, the director is entitled to be heard on the resolution at the meeting so as to providing him the chance to make fair presentation.

Without analysing the agreements between Tata Sons and Cyrus Mistry it cannot be termed the removal as illegal per se. According to proxy advisory firms, removal can be justified if majority board members vote against the concerned person.[7] Generally, the notice prior to at least seven days should be given before the board meeting. In case of absence of independent directors in the meeting, the resolution shall only be passed after ratification be at least one independent director, if any.[8]

There are various reasons like reduction in growth or increase in debt or decrease in turnover of the company but there may be two reasons carrying the highest weight, Questions over Cyrus Mistry’s management style and neglecting Ratan Tata’s advice. Cyrus was not popular among the interim management due to low performance in past few years. There are two instances of utmost concern which may have caused the board to remove Cyrus Mistry. Around middle of the year 2016 in June, International Arbitration Court had ordered Tata Sons to pay $1.17 billion to NTT DoCoMo for breach of contract. Whether Tata Group appealed the order is altogether a different matter. NTT DoCoMo had moved to International Court for Arbitration in London after Tata Services, with which it had collaborated, after Tata Services failed to find a buyer for or buyback 26% stake that DoCoMo was holding in Tata Services.[9] Another major idea which Ratan Tata would have never approved of was to abandon the Tata Steel’s welsh plant at Port Talbot- UK’s largest steelworks. After scrapping down the decision, Ratan Tata was hailed as saviour of UK Steel industry.[10]

However, there cannot be any real answer to the question regarding the removal of Cyrus Mistry as many things related to the management of the company are unknown. The person who had grasped what is happening on the interim can only tell.

[1] Available at http://www.business-standard.com/article/companies/seven-to-one-how-cyrus-mistry-was-removed-from-tata-sons-on-october-24-116122200013_1.html

[2] Available at http://indianexpress.com/article/business/companies/tata-motors-files-caveat-in-bombay-high-court-to-remove-nusli-wadia-cyrus-mistry-4425938/

[3] Company Law and Practice, Dr. G.K. Kapoor & Sanjay Dhamija (21 ed., 2016) Pg. 446

[4] Section 115 of The Companies Act, 2013

[5] (1993) 76 Comp. Cas. 821 Ker

[6] Life Insurance Corporation of India vs. Escorts Ltd. (1986) AIR 1370

[7] Available at http://indianexpress.com/article/business/companies/cyrus-mistry-removal-tata-group-not-illegal-ratan-tata-takes-over-3101278/

[8] Section 173(3) of The Companies Act, 2013.

[9] Available at http://economictimes.indiatimes.com/news/company/corporate-trends/tata-sons-ordered-to-pay-1-17-billion-to-japans-ntt-docomo-for-breaching-agreement/articleshow/52896325.cms

[10] Available at http://www.livemint.com/Companies/tczZPneSeIMOSd2GwlDMAL/Ratan-Tata-hailed-as-saviour-of-UK-steel-industry.html

Maharshi Thakkar, BA LLB, 3rd Year, Nirma University

SHOULD THERE BE A FUNDAMENTAL DUTY TO PAY TAX?

Rights are said to create correlative duties. The Constitution too has in Part IV –A incorporated certain duties in the form of Fundamental Duties. The inclusion of Fundamental Duties was imminently needed to bridle the growing lawlessness in India. The Sardar Swaran Singh Committee was formed to make recommendations about the same. The duty to pay taxes was one of the eight fundamental duties that the Committee suggested. The recommendation, however, was not accepted by the Legislature. Though not explicitly provided for in the Constitution, every citizen is still said to have an inherent duty to pay tax. A duty that most tax payers fail to acknowledge, as the growing rate of tax evasion and tax avoidance in India indicates.

The payment of taxes is seen as a legal obligation even as the government has brought into force various legislations to ensure the payment of taxes. The tax gap continues to increase every year as tax evasion is on the rise. The greatest indicator of this is the fact that the size of India’s shadow economy, as share of the GDP reached 26% in 2016. Such statistics make it evident that Indian citizens do not believe that it is their duty to pay taxes; rather, it is the duty of the state to collect it. Cases like McDowell & Co Ltd vs. The Commercial Tax Officer (1985 3 SCC 230), Union of India & Anr vs. Azadi Bachao Andolan & Anr (2004 10 SCC 1) and Vodafone International Holdings vs. Union of India (2012 6 SCC 613) are reflective of the general attitude of the masses towards the taxation regime and indicate how paying taxes is considered a burden and not a duty.

 An alternative view can be taken of taxation, where it is not just considered the right of the state; rather, citizens can be said to have a duty to contribute their share of the expense of the protection of their rights for which the state came into being in the first place. Without taxes, the very existence of the state would be in peril, which would jeopardize the rights of the citizens. Therefore, the duty to pay taxes becomes a salient part of one’s citizenship. This was recognized in Miller Bros v State of Maryland (347 US 340(1954) – The fact of residence creates universally reciprocal duties of protection by the state and of allegiance and support by the citizen. The latter obviously includes a duty to pay taxes, and their nature and measure is largely a political matter.” Several countries like Tunisia, China, Kuwait and the erstwhile UAR made provisions in their respective Constitutions regarding the duty of a citizen to contribute to the public exchequer according to his capacity.

The incorporation of the right to pay taxes as part of Fundamental Duties in the Constitution will shift the onus onto the taxpayer to pay taxes rather than the tax department to collect them. While inclusion of the duty to pay taxes may bring about greater compliance and collection, the tax gatherers need to observe their duties in the levy of taxes for the process to be successful. The role played by these tax gatherers extends beyond the mere levy and collection of taxes. They need to ensure that the laws relating to taxation are simple and certain such that it is easily comprehended by the tax payers who are not familiar with the technicalities of taxation. This is in fact one of Adam Smith’s most important canons of taxation. i.e., the Canon of Certainty. According to this canon, the tax which each individual is required to pay should be certain. The time of payment, the manner of payment and the amount to be paid should be clear to every tax payer. The application of this principle is beneficial both to the government as well as to the tax pay as it helps tax payers pay their taxes properly and avoid tax disputes. Tax collection needs to be systematic and tax gatherers need to not only legislate but also issue circulars and notifications from time to time to make the procedure more fruitful and simpler for the masses. Like Chanakya says in his Arthashastra, “One must collect tax from the people as painlessly as the bee draws nectar from the flowers”.

The Goods and Services Bill passed in 2016 is a major tax reform by the government of India. The new tax regime will check leakages, increase tax base for centre and states, eliminate cascading effect of tax on tax, reduce tax evasion and improve ease of doing business. By simplifying the taxation procedure for people, minimizing the tax burden and at the same time expanding the tax base, it may be a step towards increased compliance.

Article 51A does not talk about the duties of taxpayers or tax gatherers, but the inclusion of the fundamental duty to pay taxes may produce positive results. Fundamental duties, while not legally enforceable, provide a valuable guide and aid to interpretations of the Constitutional and legal issues.  In case of doubt or choice, people’s wish as manifested through Article 51A can serve as a guide not only for resolving the issue, but also for construing or molding the relief to be given by the courts as observed in the case of All India Institution of Medical Sciences Students Union v AIIMS.

The duties in Part-IVA – Article 51A are prefixed by the same word ‘fundamental’ which was prefixed by the founding fathers of the Constitution to ‘rights’ in Part III. Every citizen of India is fundamentally obligated to develop the scientific temper and humanism. He is fundamentally duty bound to strive towards excellence in all spheres of Individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievements. State is, all the citizens placed together and hence though Article 51-A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the collective duty of the State. Hence, the State too should play a role in furthering the citizens’ observance of their fundamental duties.

Fundamental Duties serve as a reminder for the citizens to perform specific duties and serve as a source of inspiration and commitment. They create the feeling that the citizens are not mere spectators but active participants in the realization of national goals.

Chinna Aswathy Abraham, IV Year, B.A LL.B(Hons), School of Law, SASTRA University

JALLIKATTU – IMPORTANCE AND LEGAL ASPECTS

What is Jallikattu?

Jallikattu is a traditional bull taming sport in Tamilnadu where the bulls are tied released in to the crowd and participants try to overpower the bull by getting hold of its hunch and riding over it or sometimes by removing the flags affixed to bulls’ horns.

Why is it important?

This was in practice during the period of 400 B.C and 100 B.C known as Tamil classical period and has cultural significance. The bulls are specially bred by the village for this purpose and are called temple bulls which are used only for breeding purposes and not for agricultural purposes. The bulls that don’t get tamed during the sport are used to breed as the farmers feel this is the only practical way to ensure that off springs are stronger, more resistant to and give higher quality of milk. There are only 36 native breeds in India which have A2 protein gene in them which is a beneficial and dominant protein in milk. This also helps in preserving these native breeds. If these become extinct we have to resort to difficult and expensive methods to breed them.

Ban on it

Jallikattu is banned in India. Supreme court in its judgement “Animal welfare board of India vs A. Nagaraja and Ors” struck down the Tamil Nadu Jallikattu Regulation act of 2009 as it is in violation of section 11 of prevention of cruelty to animals act of 1960 which states that over-driving, over- riding any animal subjecting it to unnecessary pain and suffering, inciting an animal to fight amounts to cruelty and upheld the notification issued by central government in 2011 banning use of various animals including bulls as performing animals. The court also stated that it works against Article 51A of The Constitution according to which it is every citizen’s duty to have compassion for living creatures.

In January 2016 center issued another notification allowing the use of bulls in traditional sports like jallikattu and bullock cart races providing number of safe guards but this has been challenged by peta (people for ethical treatment of animals) claiming that center cannot allow the sport despite Supreme Court’s ban on it. This was stayed by the Supreme Court for negating its judgement on the ban of Jallikatu and the court has reserved the order.

After three years an ordinance was passed by the state to lift the ban including provisions to prevent cruelty against the bull and approved by the governor. This is cleared by the center and sent for the president’s assent when given lifts the ban. This has to be waited till verdict is given by the Supreme Court in above case where the center’s notification is challenged. As the matter is still sub judice promulgation of ordinance before the verdict is given would amount to overriding the judiciary.

LIFE AFTER DEMONETIZATION

Let us start the journey of demonetization, better known as ‘notebandhi’, by the quotation of the American fiction writer Stephenie Meyer pertaining to ‘Hope’. She says that “I like the night. Without the dark, we’d never see the stars.” Millions of people in India are still standing outside the banks still waiting to see the stars in the dark long after the imposition of the demonetization policy. Only time will tell that whether they are fortunate enough to see the stars they are waiting for after 30 December 2016 as promised by the government. The demonetization policy was implemented with noble intention of destruct the corrupt system of the country and destroy the black money which has viciously accommodated itself at the heart of the nation. At the present stage it is abstruse whether the said promise would be fulfilled by the circumstances. It is best in the public interest that the government should implement any policy after weighing benefits as well as repercussions. Presently, no such beneficial effect is there which can be seen with naked eyes. Despite all the facts, one has to agree and it is essential to understand that the demonetization policy was not flawless for reasons specified below.

The substantial portion of the illegal wealth is not in the form of currency notes. It is held in the form of undervalued assets like real estate, land, gold and jewellery.[1] A greater large portion is not only stashed outside but is spent overseas. The significant change which has been introduced is ₹2000 currency. The government all over the world would want to demonetize the higher currency used in the terrorism activities then why RBI is issuing higher currency notes?[2] The decision is causing most inconvenience to the poor people especially women due to their hard-earned savings. Around 82 people have died due to various reasons after the decision of the government. The core question is that who is accountable for all these deaths? The fact that demonetization declared by the Morarji Desai government in 1978 had made no major impact upon the economy is because the demonetized currency was only a minuscule portion of the total currency unlike at present where ₹500 and ₹1000 comprise over 84% of the total currency in circulation. It is shown in the media that 92% of the people are supporting this move. It is hardly shown that only 5,00,000 people have voted thorough the app i.e. not even 0.5% people of the total population of the country. Even after long time of the imposition people are struggling to get readily available cash. The most unnoticed fact is that many terrorists and politicians are already possessing new currency notes not available even today to the needy people starving to death.

It is not a disputed fact that people of the nation is in support of each and every move, as the present demonetization, taken regarding the destruction of the corrupt system. The only requirement is the cost and benefit analysis which was poor in implementing this policy.

[1] Theatrics on Black Money, Economic & Political Weekly, (November 12, 2016) (Vol 46), Pg.7

[2] Id.

Maharshi Thakkar, BA LLB, 3rd Year, Nirma University

SCRUTINY OF SURROGACY – EXPLOITING WOMAN’S BODY

Introduction

The introduction of newborn infant is often a very special, extremely and fascinating occasion for everyone. Shockingly few couples, because of specific bodily functions and physiological conditions, cannot give birth to their own offspring. Infertility influences around 1 out of every 6 couples. Surrogacy is a technique or method of assisted reproduction. The significance of the “surrogate” is “deputy or substitute” and this word originates from Latin word surrogates which signifies “to act in the place of” or “substitution” in English. Thus, this implies surrogate mother is virtually a “substitute mother”. The term surrogacy is utilized when a woman conveys a pregnancy and gives birth to an infant or baby for another woman who is unable to conceive and convey a child for different reasons, for example, the failure of the embryo to implant, pelvic disorder, repeated miscarriages, hypertension, high blood pressure, hysterectomy, heart and liver sicknesses. In such cases, the routine is to go for adoption or the unconventional is Assisted Reproductive Technology (ART) in which pregnancy is caused by artificial or partially artificial means. The most commonly used ART strategies procedures are Intrauterine Insemination (IUI), Tubal Embryo Transfer (TET), In Vitro Fertilization (IVF), Zygote Intrafallopian Transfer (ZIFT), Gamete Intrafallopian Transfer (GIFT) and Gestational Surrogacy.

To many infertile people, their condition affects their most essential feelings about who they are and what their part in the family is? It impacts one’s personality and the extent of fulfillment. For that reason, infertility is regarded a major health problem. Consequently, it makes it clear why individuals who cannot have children the natural way look for other ways in order to become a parent. Before, couples unable to conceive were expected to turn to adoption to achieve their parenthood dreams. These days there are numerous choices for infertile couples, as well as singles and homosexuals who need children. The desire of parenthood leads them to look for options including ART, IVF and IUI. Development in medicinal sciences and innovation, especially in assisted reproductive techniques, with techniques like donor insemination and embryo transfer strategies have revolutionized the regenerative environment and have prompted an expanding prominence of surrogacy. With the presentation of financial agreements in return for the surrogate child, the child becomes a saleable commodity. Therefore, complications emerge and questions must be raised regarding the rights of the surrogate mother, the child and the authorizing parents. Amid the analysis and scrutiny on the topic several ethical pitfalls identified associated with the Indian maternal surrogacy model. The two most glaring was:

  1. The inadequacy of the medical informed consent model to mull over the social risks postured by maternal surrogacy; and
  2. The absence of autonomous backing, for the purposes of contract negotiation and medical decision-making, with respect to the surrogate.

Situation of Surrogacy in India

The Indian situation in surrogacy field is bleak and very hopeless. The Delhi artificial insemination (Human) Act, 1995 is the only statutory act exists and prevailing in India. There is no interior administrative regulatory body like Interim (Voluntary) Licensing Authority (V.L.A) in United Kingdom, moreover Indian Infertility specialist have rather contradicted the decisive strides towards direction of practice in this field.

  • Litigation against doctors and specialists – doctors confront litigations like – Not taking legitimate informed assent, after duly counseling the couple and / or oocytes / semen donor and informed and written assent ought to be taken from both the life partners as well as donor.
  • Legitimacy – The child born by ART is considered honest, legitimate with all the privileges of parentage, support and inheritance, provided he is born during lawful wedlock and with consent of both the spouses.
  • Inheritance of property – Since the child is illegitimate if born out of Artificial Insemination by Donor (AID), it can’t acquire the property of his father.
  • Consummation of marriage – Conception of the spouse by Artificial Insemination by husband or Artificial Insemination by Donor does not amount to consummation of marriage, if there is no successful sexual act due to the impotency of husband.
  • Rights of an unmarried woman to AID – There are no lawful bar on an unmarried lady going for AID. A child born to a single woman through AID would be deemed to be legitimate.
  • Ground for divorce and judicial separation – Mere Artificial Insemination is not a ground for nullity of marriage and separation/ divorce since sterility is not a ground, notwithstanding if Artificial Insemination is because of impotence of husband, it turns into the ground. AID without husbands consent can be a ground for separation/ divorce and legal detachment.
  • Maintenance and custody of child – Under Hindu Adoption and Maintenance Act, 1956 the maintenance of the dependents is the obligation of the parents, whether legitimate or illegitimate, till the child stays minor and girl child is unmarried.
  • Insemination after the death of the husband – This is seen when semen of the husband is cryo – safeguarded by different methods and the women is inseminated after death of the husband.
  • Relation between Artificial Insemination by husband and Artificial Insemination by Donor child with subsequent Natural/ Adopted offspring of same family – If the infant is born of natural course sometimes after the birth of the infant through Artificial Insemination, the status will remain same for Artificial Insemination child but the natural conceived infant born will remain legitimate.
  • Charge of Adultery – AID does not amount to adultery/ infidelity, regardless of the possibility that it was managed without the assent of husband. For the charge of adultery/ infidelity two things must be proved, sexual intercourse occurred with someone else’s better half and no assent or conspiracy from another man was conceded.
  • Incestuous relationship – There is high danger of such relationship between normally conceived kid and youngster resulting from AID of same parent.

New surrogacy Bill – Major Reform

An exhaustive law to regulate surrogacy has been pending long overdue. Throughout the years, India has turned into a worldwide center for the practice of women being contracted to carry others’ babies, usually for a payment. While assessments of the extent of the surrogacy market change uncontrollably, it is one in which the woman carrying an embryo has been in a hazy area, with questionable legitimate and compensatory insurance. The Union Cabinet on August 24, 2016 ventured out direction first step towards regulation by approving the introduction of Surrogacy (Regulation) Bill, 2016, yet it has numerous problematic provisions. The proposed law, in accordance with the practice in a few different nations, says commercial/ business surrogacy will be precluded. In any case, all together that “selfless surrogacy” is accessible for the advantage of barren couples who are probably edgy for a child that is hereditarily theirs, the Surrogacy (Regulation) Bill, 2016 permits Indian couples, who must have been married for five years without a child, to take the help of surrogates, but without any payment. Just close relatives can be ‘surrogate moms’, and once in a lifetime. However, it bars foreigners, gay couples, unmarried couples and individuals from taking the assistance of an altruistic surrogate — leaving it open to questions about separation and disparity.

Conclusion – Way Ahead

In India, surrogacy is simply, purely a contractual comprehension understanding between the parties so care must be taken while drafting assertion so it doesn’t violate or disregard any of the laws like, example points to be taken into consideration why does the intended parents opt for surrogacy, particulars of the surrogate, sort of surrogacy, specifying about paternity in the agreement, the production of registry for biological father of children in an adoption cases, rules put forward on how and when hereditary testing should be possible to decide paternity, pay compensation clause, unexpected mishappening to the surrogate mother, child’s custody, with respect to the ward for the jurisdiction for the debate emerging out of agreement. The proposed law needs appropriate examination and verbal confrontation with regards to legitimate, social, medical and therapeutic angles.

Author Remarks

Being a responsible citizen of our nation and through an esteemed platform of Jurisedge I convey my remarks and draw the kind attention of the government administration that they should truly think about instituting as a law to direct surrogacy in India so as to ensure and guide couples looking for such option. The better option could have been to put surrogacy under the control of the government or an autonomous (self governing) government agency.

BIBLIOGRAPHY / SOURCES

  • STATUE(S) REFERRED

Indian Penal Code, 1860

The Hindu Marriage Act, 1955 (Act 25 of 1955).

Hindu Adoption and Maintenance Act, 1956

The Delhi Artificial Insemination (Human) Act, 1995 (Delhi Act No. 12 of 1996).

  • INTERNET SOURCES REFERRED

Surrogacy, Wikipedia, https://en.wikipedia.org/wiki/Surrogacy (last visited Jan 26, 2017).

Commercial surrogacy in India, Wikipedia, https://en.wikipedia.org/wiki/Commercial_surrogacy_in_India (last visited Jan 26, 2017).

Express News Service, New surrogacy Bill bars married couples with kids, NRIs, gays, live-ins, foreigners The Indian Express (2016), http://indianexpress.com/article/india/india-news-india/surrogacy-bill-sushma-swaraj-married-couples-can-now-opt-homosexuals/ (last visited Jan 26, 2017).

By Ashish Gupta, B.A. LL.B (Hons.) 4th Year, CHANDERPRABHU JAIN COLLEGE OF HIGHER STUDIES & SCHOOL OF LAW, GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY, DELHI