Any questions?

+91 91571 84643

The Duties of the Authorisation Committee in Marriage case

Rule 18(5) of the Transplantation of Human Organs and Tissues Rules, 2014

1. The Provision

Rule 18(5), Transplantation of Human Organs and Tissues Rules, 2014 — “Where the proposed transplant is between a married couple the competent authority or Authorisation Committee (in case donor or recipient is a foreigner) must evaluate the factum and duration of marriage and ensure that documents such as marriage certificate, marriage photograph etc. are kept for records along with the information on the number and age of children and a family photograph depicting the entire family, birth certificate of children containing the particulars of parents and issue a certificate in Form 6 (for spousal donor).”

2. Meaning of “Factum” in Legal Terminology

“Factum” is a Latin-derived legal term meaning “a fact” or “a thing done” — i.e., the actual, objective occurrence or existence of an event, as distinguished from its legal validity, quality, or interpretation. In Indian legal usage (borrowed from English legal drafting, and closely associated with its use in the Indian Evidence Act and matrimonial law), “factum” refers to the bare fact that something happened or exists, as opposed to questions of its legal character or consequence.

The most familiar legal usage is the distinction between “factum of marriage” and “validity of marriage”:

  • Factum of marriage: whether a marriage ceremony actually took place and the parties have been living/held out as husband and wife — a question of fact, provable through documents (marriage certificate, photographs), witness testimony, ration cards, joint bank accounts, birth certificates of children, community reputation, etc.
  • Validity of marriage: whether the marriage, assuming it took place, is legally valid (i.e., satisfies the requisites of the personal law or the Special Marriage Act, is not void/voidable, etc.) — a question of law.

In the context of Rule 18(5), the phrase “evaluate the factum and duration of marriage” therefore directs the competent authority/Authorisation Committee to satisfy itself on two connected but distinct points:

  • That the marriage genuinely exists (the factum) — i.e., that the donor and recipient are, in truth, a married couple and not persons falsely claiming a spousal relationship to circumvent the “near relative” requirements and disguise a commercial transaction as an altruistic spousal donation; and
  • The duration for which that marriage has subsisted — since a marriage of very recent origin, entered into shortly before an organ transplant is sought, is treated (rebuttably) as a red flag suggesting the marriage itself may have been contracted/engineered as a device to obtain organ-donation clearance, i.e., “commercial” or “consideration-driven” donation masquerading as spousal altruism.

In short, “factum” here is used in its ordinary legal sense of objective, verifiable existence of a fact (the marriage), as opposed to its bare legal label — the Rule wants the Committee to look behind the certificate and be satisfied, on cogent material, that a real, subsisting marital relationship exists, not merely that a piece of paper describing one has been produced.

3. What the Authorisation Committee is Required to Do

Reading Rule 18(5) together with the general procedural mandate in Rule 18 (particularly sub-rules on documentation and verification) and Rule 7(3) (which lists the safeguards against commercial dealing), the Authorisation Committee’s obligations in a spousal-donor case are:

  • Jurisdictional trigger: The Authorisation Committee (rather than the hospital-level “competent authority”) deals with spousal cases only where the donor or the recipient is a foreign national; purely domestic spousal cases are ordinarily handled by the competent authority/hospital transplant committee, unless state rules direct otherwise.
  • Evaluate the factum of marriage: Independently assess, on the material placed before it, whether the donor and recipient are genuinely married — not accept a marriage certificate mechanically, but weigh it along with corroborative material (photographs, children’s birth certificates, joint residence/ration card, community/family knowledge of the marriage, etc.).
  • Evaluate the duration of the marriage: Consider how long the marriage has subsisted, since an unusually short duration (especially one that coincides suspiciously with the onset of the recipient’s illness) may call for closer scrutiny — but, per recent case law discussed below, short duration or a technical documentary gap cannot by itself be a ground for automatic rejection; it must be assessed contextually.
  • Maintain the prescribed documentary record: Ensure that the marriage certificate, marriage photograph(s), information on the number and age of children, a family photograph depicting the entire family, and the birth certificates of children (showing particulars of the parents) are collected and retained on file.
  • Seek clarification where documents are doubtful: Under the general procedure in Rule 18, if any document or information appears inadequate or doubtful, the Committee must seek an explanation from the applicant, and may get facts verified through the concerned State/UT government officer before relying on them.
  • Guard against commercial dealing/disguised sale: The scrutiny of the spousal relationship exists chiefly to prevent sham or recently manufactured marriages being used to route a commercial organ sale through the (comparatively lighter) spousal/near-relative route rather than the more rigorous “unrelated donor” route under Section 9(3)/Rule 19.
  • Issue Form 6: On being satisfied, issue the certificate in Form 6 (spousal donor) recording its approval.
  • Pass a reasoned, non-mechanical order: Courts have repeatedly emphasised that rejection cannot rest on a single, isolated formality (absence of one photograph, a missing entry in a ration card, short marital duration alone); the Committee must apply its mind to the totality of circumstances and record reasons, since its decision is subject to appeal under Section 17 and to judicial review under Article 226.

4. Relevant Case Law

There is no reported Supreme Court decision interpreting Rule 18(5)/the “factum and duration of marriage” clause specifically. The governing Supreme Court authority on the broader scheme (burden of proof, altruism, and the Authorisation Committee’s duty of application of mind) is Kuldeep Singh v. State of Tamil Nadu, and several High Courts — principally Kerala, Punjab & Haryana, and Madras — have applied and extended its reasoning to spousal-donor disputes arising under Rule 18(5)/Rule 7(3). Key decisions include:

(a) Kuldeep Singh v. State of Tamil Nadu, (2005) 11 SCC 122 (Supreme Court)

The foundational authority on the working of Authorisation Committees under the Act. The Supreme Court held that the object of the Act is to prevent commercial dealing in human organs, and that where the donor is not a “near relative,” the burden is on the applicants to satisfy the Committee that no element of commercialisation is involved and that the donation is prompted by affection, attachment or other special reason — the Committee must weigh the statutory factors (analogous to those under Rule 7(3)) to reach a judicious conclusion. High Courts routinely invoke this ruling — by analogy — while reviewing spousal-donor rejections under Rule 18(5), holding that the Committee’s scrutiny of “factum and duration of marriage” must similarly be purposive (to detect sham/commercial arrangements) rather than a search for technical infirmities.

(b) Fousiya and Another v. State of Kerala and Others, WP(C) No. 10249 of 2026, decided 19-08-2026 (Kerala High Court)

The District Level Authorisation Committee had rejected a husband’s application to donate a kidney to his wife on the sole ground that the wife herself had donated her kidney some years earlier. Justice Harisankar V. Menon held, examining Section 9 of the Act with Rule 7(3), that a spouse’s earlier act of organ donation cannot by itself be a valid ground to reject the other spouse’s donation application; the Court relied on its own earlier rulings in Shereef M. v. State of Kerala and Uvais Muhammad K.C. v. State of Kerala, set aside the rejection, and remitted the matter for fresh consideration with a direction for expeditious disposal.

(c) Punjab & Haryana High Court, CWP No. 5480 of 2022 (spousal kidney donation)

A wife’s application to donate a kidney to her husband (whose chronic renal failure was diagnosed only two months after their marriage) was rejected by the Hospital Transplant Committee solely on the ground of the short duration of the marriage. The High Court found the couple to be legally and genuinely married with no indicia of pressure, greed or malpractice, and directed that permission be granted — holding that competent authorities/Authorisation Committees must decide such matters pragmatically and expeditiously, balancing the need to save life against the need to prevent exploitation, rather than treating short marital duration as an automatic bar.

(d) Atanu Saha v. State of Tamil Nadu, Madras High Court (order dated 02-04-2026 challenged; decided 2026)

The Authorisation Committee had refused a Bangladeshi mother permission to donate a kidney to her minor son on the ground that the spousal relationship between the child’s parents (relevant to establishing the family/parentage documentation contemplated by Rule 18) had not been sufficiently established. Justice G.R. Swaminathan held the rejection suffered from “misdirection in law and utter non-application of mind,” found the mother-child relationship clearly established on the material on record, and directed the Committee to grant permission for the transplant immediately — illustrating that documentary scrutiny of family/marital status must not be applied insensitively where the underlying relationship is otherwise established.

(e) Jillet K.T. v. State of Kerala, 2024 (Kerala High Court)

Though concerning an unrelated (non-spousal) donor under Section 9(5), Justice V.G. Arun’s observation that “absence of photographs featuring the donor and recipient cannot also be the reason for negativing the donor’s version” of voluntary donation is frequently cited alongside Rule 18(5) disputes for the wider principle that missing or incomplete documentary formalities are not, without more, sufficient to defeat an otherwise credible claim of a genuine relationship.

(f) Kerala High Court — reconsideration of spousal-adjacent friend donation (decided August 2025)

In a case where a kidney patient’s friend’s wife volunteered to donate, and the Committee doubted altruism partly because the marriage certificate of the donor was not produced and her husband’s name did not appear on her ration card, Justice N. Nagaresh held that the absence of a marriage certificate and non-inclusion of the husband’s name in the ration card could not be grounds to doubt the relationship, quashed the rejection, and remitted the matter — again reinforcing that Rule 18(5)-type documentary requirements are evidentiary aids, not rigid pre-conditions.

5. Summary

“Factum” in Rule 18(5) means the objective, provable fact of the marriage’s existence (as opposed to its legal validity or mere documentary label). The Authorisation Committee/competent authority must independently verify this fact and the marriage’s duration through corroborative documentation, seek clarification on doubtful material, and guard against sham marriages being used to disguise commercial organ transactions — while courts have consistently cautioned that this scrutiny must be purposive, reasoned, and non-mechanical, and that isolated documentary gaps or short marital duration cannot, by themselves, justify rejection of a genuine spousal donation.

Note: This document is prepared for general informational and academic understanding of the statutory provision and is not a substitute for independent legal advice or verification of the cited judgments from official reports/certified copies.

Author: Prashant Ajmera, Advocate& Co-founder OneIndiaOneLaw.org

Email: prashant@ajmeralaw.com