Bombay High Court: In a major relief to actor Shahrukh Khan, a bench comprising of Revati Mohite Dhere, J. dismissed a petition filed by a social activist against a lower court order which had restricted her from accessing the records and other documents of the baby born through surrogacy. In the present case, the activist had sought prosecution of the actor, his wife and their doctors on the basis of a news report in a city newspaper in June 2013 which claimed that the star couple were having a baby boy through surrogacy. She alleged the doctors had allegedly violated the provisions of PC-PNDT Act, 1994 that prohibits sex determination of a fetus. The Trial Court had rejected her application under Section 28(3) of the PC-PNDT Act seeking directions to the local Municipal Corporation to produce all records of the surrogate mother and test conducted on her in order to support her case.
The Court discussed Section 28(3) in light of the objective of the legislation, right to privacy of the stakeholders in cases of surrogacy and the scope of the word ‘may’ used in Section 28(3) indicating discretion given to the Court to direct the Appropriate Authority to handover the documents or not. Mr. Uday Warunjikar, the counsel for the Petitioner contended that the word ‘may’ as it appears in Section 28(3) of the PCPNDTAct should be read as ‘shall’. Mr Pranav Badheka appearing for respondents Shahrukh Khan and Gauri Khan, submitted that if the word ‘may’ is read as ‘shall’, it would be a mechanical order, leaving no discretion whatsoever, in the Magistrate and would thereby violate the right to privacy of the parties involved in the surrogacy. The Court after listening to all arguments including Senior Counsel MPS Rao, held that it was for the Magistrate to consider whether the demand of documents/records from the Appropriate Authority is genuine, bonafide etc and declined to interfere with the magistrate’s order. Varsha Laxman Deshpande vs. Municipal Commissioner, Criminal Writ Petition No. 4164 of 2013, decided on June 19, 2014
To read the full judgment, refer to SCCOnLine
