S/L 20 24.07.2026 Court. No. 25 suvayan WPA 7074 of 2026 Kumkum Samadar & Anr. Vs. The State of West Bengal & Ors. Mr. Rahul Parasrampuria Mr. Rohit Parasrampuria Mr. Satyam Bhimsaria Mr. Somya Ojha Ms. Disha Agarwal …for the petitioners. Mrs. Sudipa Banerjee Ms. Manisha Paswan …for the State. 1. The affidavit-of-service filed by the petitioners be kept with the record. 2. The petitioners have filed the present writ application praying for a direction upon the respondent no. 4 to provide ART treatment to the petitioner no. 1. 3. Learned counsel for the petitioners submits that the marriage between the petitioner nos. 1 and 2 solemnized on August 12, 2022 and after the marriage the unfortunate couple not blessed with any issue in spite of several clinical test. Subsequently, with the advice of the relatives and friends, the petitioners have approached the respondent no. 4 to adopt the ART procedure. 4. At the time of clinical test, the respondent no. 4 found that the petitioner no. 1, the wife is aged about 38 years but the petitioner no. 2,the husband of the petitioner no. 1 is aged about 57 years and as such the petitioner no. 2 is overage in terms of the Act, thus the respondent no. 4 has refused to provide IVF treatment to the petitioner no. 1 and directed the petitioners to obtain order from 2 this Court. Accordingly, the petitioners have filed the present writ application. 5. The petitioners have relied upon the judgment passed by this Court in the case of Rakhee Paul & Anr. vs. State of West Bengal & Ors. reported in 2026 SCC OnLine Calcutta 1500 and submits that the similar issue was decided by this Court in the said case and this Court held that Section 21 (g) the age of the woman is prescribed shall be above the age of 21 years and below the age of 50 years and for the man above the age of 21 years and below the age of 55 years. But this Court considered that the wife is aged about 49 years which is below the age of 55 years and as such the Court has allowed the wife to go for the IVF test and directed the authorities to give the facility to ARTS to the petitioners. 6. The petitioners have also referred several orders in the case of Sudarsan Mandal & Anr. vs. The State of West Bengal & Ors. passed in WPA 9232 of 2024 dated April 26, 2024, WPA 26524 of 2025 (Biswanath baidya & Anr. vs. The State of West Bengal & Ors.) dated January 6, 2026 and WPA 23776 of 2024 (Shyamoli Saha & Anr. vs. The State of West Bengal & Ors.) dated November 22, 2024. 7. Section 21 (g) makes no difference between woman and who approaches a clinic for taking resort to such technology individually and a woman who is one of the spouses of a commissioning couple approaching the clinic for similar purposes. The Act does not discriminate between women who are married and those 3 who are not such distinction cannot be made in the present case also. 8. In the present case, the wife is within age limit but the husband is over aged. 9. In the case in hand if the woman is not allowed to avail ARTS citing Section 21 (g) even though she is eligible for the same, then it will be sheer injustice to her for the ineligibility of the husband, the wife ought not to suffer. This is so because the husband has no physical participation in any of the procedures involved for the birth of the child thorough ARTS. 10. In the present case, the husband has given consent to the wife to go for the ART procedure. 11. Considering the above, the respondent no. 4 is directed to provide such facility to the petitioner no. 1, if the petitioners approach the authorities and the petitioners are otherwise fulfill the conditions except the age of the husband/petitioner no. 2. 12. WPA 7074 of 2026 is disposed of. 13. Urgent photostat certified copies of this order, if applied for, be supplied to the parties upon compliance with all the necessary formalities. (Krishna Rao, J.)