Court holds that binding Division Bench ruling upholding Section 21(g) of the ART Act leaves no scope for relief to petitioners over 50 years for women and 55 years for men
The Kerala High Court has dismissed a large batch of writ petitions challenging the constitutional validity of the age restriction under the Assisted Reproductive Technology (Regulation) Act, 2021, which limits ART services to women below 50 years and men below 55 years.
Justice Shoba Annamma Eapen delivered the common judgment in more than 100 connected petitions filed by couples and individuals who had crossed the statutory age threshold but sought permission to access assisted reproductive technology services from licensed clinics. The petitioners argued that Section 21(g) of the Act was arbitrary, discriminatory and violative of Article 14 of the Constitution. They also contended that the law was unconstitutional because it did not contain any transitional provision for persons already undergoing treatment.
The Union of India opposed the petitions, stating that the age criteria had been recommended by the Department-Related Parliamentary Standing Committee on Health and Family Welfare and that the issue had already been considered in earlier litigation before the High Court. The government pointed out that a learned Single Judge in Nandini K. v. Union of India had earlier upheld the validity of Section 21(g), though that judgment had also issued certain directions regarding ongoing treatment and a possible re-look at the age limit.
A key issue before the court was whether an earlier Division Bench order dismissing the Union’s appeal on the ground of delay could be treated as a binding decision on merits. The petitioners argued that the earlier dismissal should prevail, and that the later Division Bench judgment in Union of India v. Nandini K. was per incuriam. The court rejected that contention, holding that the order dismissing the appeal for delay did not decide the matter on merits and therefore could not override the later Division Bench ruling.
Relying on the Division Bench judgment dated 18 July 2025 in Union of India v. Nandini K., the High Court noted that the appellate court had already upheld the findings negating the challenge to Section 21(g) and held that the directions issued by the Single Judge had become otiose. The court also referred to settled principles on precedents, observing that only the ratio decidendi of a judgment is binding, not every observation made in passing.
Since the constitutional validity of the provision had already been upheld by a binding Division Bench decision, the court held that the present petitioners were not entitled to any relief. All the writ petitions were accordingly dismissed.
Bottom Line :
Assisted Reproductive Technology (Regulation) Act, 2021 - Section 21(g) prescribing upper age limit of 50 years for women and 55 years for men for availing ART services - Constitutional validity challenged on ground of arbitrariness and violation of Article 14 - Held, challenge not maintainable in view of binding Division Bench judgment in Union of India v. Nandini K. upholding findings negating challenge to Section 21(g) - Earlier Division Bench order dismissing appeal on delay cannot be treated as decision on merits or binding precedent - Writ petitions dismissed.
Statutory provision(s): Section 21(g), Assisted Reproductive Technology (Regulation) Act, 2021, Article 14, Constitution of India, 1950
Pushpa I.K. v. Union of India, (Kerala) : Law Finder Doc id # 2851956
