Allahabad HC Allows Woman’s Plea To Give Her Child In Adoption To Her New Husband [Read Judgment]

Renunciation of the child by a parent can be taken into consideration while determining whether the power to give in adoption has been delegated or to determine the consent to giving in adoption, the court observed.

The Allahabad High Court, while expressing its concurrence with the Delhi High Court’s view taken in a matter relating to adoption laws, observed that though the Indian law does not, on renunciation of child by either parent, vests an exclusive right in the other to give the child in adoption, however, such renunciation of the child by a parent can be taken into consideration while determining whether the power to give in adoption has been delegated to the other parent or to determine her/his consent to giving the child in adoption.

A lady, who had remarried after divorce, sought the court’s permission to give the child (born in the wedlock with earlier husband) in adoption to her new husband, whom she has married after judicial separation from her earlier husband. The case reached the Allahabad High Court as the district court refused to grant such a leave on the ground that since the putative father of the child is alive and he has not renounced the world, neither has he ceased to be a Hindu and further that he has also not been declared to be a person of unsound mind by any court, as such in the absence of consent of his biological father, permission sought by mother for giving the child in adoption cannot be granted.

Justice Devendra Kumar Upadhyaya took note of a Delhi High Court decision wherein it was observed that, in view of complete detachment of the biological father from the child who did not perform any of the fatherly duties, the mother cannot be restrained from lawfully including the child in her new family.

The court, however, observed that the consent of the other parent will not be required for a person giving a child in adoption only if the other parent renounces the world and not the child alone. In the facts of the case, the court said: “Biological father of the child, in the present case has abandoned him; rather has renounced him and has not performed any of his duties, which he owes to the child. He has also given up all his rights, including the right of visitation.”

Allowing the plea, the court said: “If the biological father in this case has not taken any measures to bear his responsibility, the laws and the Court will hesitate to grant any such right in favour of a parent who has failed to do so.”