1. These writ petitions are filed by the petitioners, who are husband and wife or either of them, having crossed the upper age limit of 50 years for women and 55 years for men prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021 (for short, “the Act”). The Act prohibits the application of the Assisted Reproductive Technology services (ART services) to the persons above the prescribed age limit. Challenging the constitutional validity of Section 21(g) of the Act to the extent it prescribes maximum age for men and women to seek ART services from licensed clinics and also seeking a direction to the respondents to take immediate steps to provide ART services to the petitioners, they have approached this Court with the above writ petitions.

2. Since the petitioners in these writ petitions are similarly situated and the issue involved is one and the same, these writ petitions are heard together and being disposed of by this common judgment. For disposing of the writ petitions, WP(C) No.352 of 2023 is taken as the leading case.

3. In these writ petitions, as stated above, either the husband or the wife crossed the upper age limit prescribed under the Act. According to the petitioners, the prescription of an upper age limit for men and women is violative of Article 14 of the Constitution of India. The petitioners have also challenged the Act on the ground that it does not contain any transitional provision.

4. All these writ petitions were contested by the Union of India by filing counter affidavits and statements. In WP(C) No.352 of 2023, the Union of India filed a counter affidavit, contending that the Constitution of India mandates the State to act as parent’s patria for the protection, wellbeing and welfare of all children. It is also contended that the core guiding force and the basic structure of the Act is completely allied with the other statutory provisions enacted for the welfare of the children. According to the Union of India, the issue regarding prescribing age limit for men and women has been considered by the Department Related Parliamentary Standing Committee on Health and Family Welfare and the same recommended the age criteria of 21 to 50 years for women and 21 to 55 years for men for availing ART services. It is also pointed out that the Single Bench of this Court, in Nandini K. v. Union of India [2023 (1) KHC 149], upheld the constitutional validity of Section 21(g) of the Act and the directions given therein were taken up with the National Board. It is also stated that Section 21(g) of Chapter-IV of the Act, prescribing the age limits for availing ART services is under consideration before the apex court in WP(C) No.756/2022 and connected IAs.

5. Thereafter, a statement dated 20.01.2026 was filed by the Union of India in WP(C) No.352 of 2023, stating that the learned Single Judge of this Court in Nandini K. (supra) had upheld the age limit fixed under Section 21(g) of the Act, and that, aggrieved by the directions passed therein, the Union of India filed appeals, which were allowed holding, “Thus for the reason aforementioned, we hereby allow the intra court appeal viz-a-viz the directions issued in the impugned judgment and uphold findings negating the challenge to provisions of Section 21(g) of the Act of 2021.” According to the Union of India, since the Division Bench of this Court allowed the appeal filed by them, these writ petitions are only to be dismissed.

6. I have heard the respective learned counsel appearing for the petitioners in the writ petitions, the learned Deputy Solicitor General of India and the learned Government Pleader.

7. The learned counsel for the petitioners submitted that the Division Bench of this Court, by judgment dated 25.06.2025, dismissed WA No.1331 of 2025 filed by the Union of India against the judgment in Nandini (supra). It is further submitted that since another judgment dated 18.07.2025 was passed by another Division Bench of this Court in Union of India v. Nandini K. [2025 KHC OnLine 2087], allowing the appeal filed by the Union of India, the matter has to be referred to the Full Bench for consideration of the issue. According to the learned counsel for the petitioners, since the earlier judgment was dated 25.06.2025 and the subsequent judgment was dated 18.07.2025, the judgment dated 25.06.2025 has to be followed and the judgment dated 18.07.2025 is per incuriam. It is also submitted that while dismissing the appeal (WA No. 1331 of 2025) filed by the Union of India by judgment dated 25.06.2025, the Division Bench of this Court considered the delay of 864 days in filing the appeal, however, dissatisfied with the reasons stated in the affidavit for condoning the delay, this Court dismissed the delay petition. According to the learned counsel for the petitioners, the Division Bench of this Court considered WA No.1331 of 2025 on merits and dismissed the appeal, holding as follows:

                  “Even on merits, if at all it is considered, 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.”

                  It is argued that since the delay petition was dismissed, it amounts to confirmation of the judgment passed by the learned Single Judge. To substantiate the arguments, the learned counsel for the petitioners relied on Thambi v. Mathew [1987 KHC 599], wherein it is held as follows:

                  “Dismissal of an appeal on the ground of limitation was thus held as amounting to a confirmation of the decree of the trial court on the merits of the case and the decision of the appellate court is held to be res judicata on the question of title raised in the connected appeal. This decision of the Supreme Court would clearly indicate that the decree of the trial court gets merged in the appellate court's decree even when the appeal is dismissed on a preliminary ground or as time-barred. In Annapu Ramanna v. Ponduri Sreeramulu, AIR 1958 Andh Pra 768 dealing with a case of dismissal at the admission stage under Order 41. Rule 11, C.P.C. Subba Rao, C.J. observed at p. 771 :

                  "The aforesaid provisions provide two modes for the disposal of an appeal. They were conceived for the expeditious disposal of frivolous appeals without giving notice to the respondent and causing him unnecessary trouble and expense and for the decision of arguable appeals after giving notice to the respondent and giving him an opportunity to support the decision of the trial court. The difference between the two modes lies, only in the manner of disposal but not in the essence.”

8. The learned DSGI, on the other hand, submitted that the judgment dated 25.06.2025 in WA No.1331 of 2025 was not rendered on merits. According to the learned DSGI, this Court considered only the delay petition filed by the Union of India; and having not satisfied with the reasons stated in the affidavit, the delay petition was dismissed, consequent to which the appeal was also dismissed; and hence, it cannot be considered as a judgment rendered on merits of the appeal, whereas the judgment dated 18.07.2025 in Union of India v. Nandini K. [2025 KHC OnLine 2087] was rendered by the Division Bench of this Court on merits. Hence, the learned DSGI submitted that since the afore judgment was passed on merits, it is the binding judgment of this Court, which has to be followed. The learned DSGI further relied on the judgment of the apex court in State of Orissa & others v. Md. Illiyas [2006 KHC 28], wherein it was held as follows:

                  “12 When the allegation is of cheating or deceiving, whether the alleged act is wilful or not depends upon the circumstances of the case concerned and there cannot be any straitjacket formula. The High Court unfortunately did not discuss the factual aspects and by merely placing reliance on an earlier decision of the Court held that prerequisite conditions were absent. Reliance on the decision without looking into the factual background of the case before it, is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential.An inferential finding of facts is the inference which the Judge draws from the direct,or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. (See State of Orissa v. Sudhansu Sekhar Misra (1968(2) SCR 154) and Union of India v. Dhanwanti Devi (1996 (6) SCC 44).) A case is a precedent and binding for what it explicitly decides and no more. The words used byJudges in their judgments are not to be read as if they are words in an Act ofParliament. In Quinn v. Leathem (1901 AC 495 : 85 LT 289) the Earl of Halsbury, L.C.observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.”

                  Referring to the above, the learned DSGI submitted that the observations made in judgment dated 25.06.2025 are not on merits and hence, it cannot be treated as a precedent for this Court.

9. I have considered the rival contentions raised on both sides. The petitioners in all these writ petitions challenge the constitutional validity of Section 21(g) of the Act and also seek directions to permit the petitioners to avail ART services from licensed clinics. The case of the petitioners and the prayers made in the writ petitions are similar to that of the case in Nandini K. v. Union of India [2023 (1) KHC 149], which was considered by a learned Single Judge of this Court. It was found therein that it is difficult to hold the prescription of upper age limit in Section 21(g) of the  Act  to  be  so  excessive  and  arbitrary  as  to  warrant  judicial interference. At the same time, it was held that the imposition of age restriction without even a transitional provision, to be irrational and arbitrary. In Nandini K. v. Union of India [2023 (1) KHC 149], the following directions were issued by the learned Single Judge:

                  “(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.”

10. The Union of India, aggrieved by the directions in the afore judgment, approached the Division Bench of this Court; and the Division Bench, allowed the appeal on merits as per the judgment in Union of India v. Nandini K. [2025 KHC OnLine 2087], which was relied on by the learned DSGI, wherein it was held in paragraph nos.14 and 15 as follows:

                  “14. The direction No.1 would be construed only for the purpose of the patients, who had availed the ART services under the erstwhile guidelines and once the one cycle is over, it cannot be permitted to continue under the old cycle as by that time, the new Act with effect from 25/01/2022 had already come into force. Since the NationalBoard has already deliberated upon the directions and found the provisions of the Act to be intact the aforementioned directions, in our considered view have become otiose.

                  15. Thus for the reason aforementioned, we hereby allow the intra court appeal vis-a-vis the directions issued in the impugned judgment and uphold findings negating the challenge to provisions of S.21(g) of Act of 2021.”

11. Earlier, the Division Bench of this Court, in WA No.1331 of 2025, had dismissed the appeal filed by the Union of India since there was a delay in filing the appeal. The delay in filing the appeal was not condoned, consequent to which, the appeal was dismissed. While dismissing the appeal, observations were made regarding the directions given by the learned Single Judge. However, the Division Bench has not considered anything on merits that was raised in the appeal. The dismissal of the delay petition resulted in the consequential dismissal of the appeal, whereas the judgment in WA No.696 of 2024 was rendered on merits on 18.07.2025. In WA No.696 of 2024, the Division Bench considered in detail the facts and merits of the case and found that the constitutional validity of Section 21(g) of the Act was upheld by the learned Single Judge. It was further observed therein that the learned Single Judge ought not to have issued further directions and that, there was no requirement to issue such directions directing the Union of India to incorporate the aforementioned provisions in the already enacted and promulgated Act.

12. In Md. Illiyas (supra), it is held that it is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason, it is important to analyse a decision and isolate from it the ratio decidendi. The Division Bench of this Court, while dismissing the delay petition, has not arrived at any ratio and not decided the appeal on merits. However, subsequently, another Division Bench of this Court entertained and allowed the appeal filed by the Union of India. It is true that when the delay petition is dismissed, the consequential dismissal of the appeal will amount to confirmation of the impugned judgment. At the time of hearing the appeal before the subsequent Division Bench, no issue regarding res judicata had been raised by the parties and the Division Bench considered the matter on merits and allowed the appeal. The judgment in WA No.696 of 2024 dated 18.07.2025 is decided on merits considering the factual as well as legal aspects. Hence, this Court is bound by the judgment in WA No.696 of 2024, Union of India v. Nandini K. [2025 KHC OnLine 2087], an appeal filed by the Union of India against the directions of the learned Single Judge, which was allowed, upholding the findings negating the challenge to provisions of Section 21(g) of the Act. Therefore, I find that the petitioners are not entitled to any reliefs as claimed and the writ petitions are liable to be dismissed.

                  Accordingly, the writ petitions are dismissed.