Obligations Of Adoptive Parents Are Higher Both Morally & Ethically: Kerala High Court Tells Couple Caught In Adoption Annulment Row

"Had you been the biological parents, would you decide not to keep the child? This is a case which shows me that adoptive; parents are different. If a child is not well or has some disorder, will parents say that they don't want the child?" the Kerala High Court lamented on Friday, while considering the plea moved by the adoptive parents seeking the permission of the Court to annul the adoption of a girl (now a major).

Justice Devan Ramachandran noted that there were several cases wherein children beat up, and even kill their parents. 

"There are several Senior Citizens coming before this Court and several such cases. Since the parents in those cannot annul it, they don't. You (the petitioners) seek that because you have the privilege of annulment. If those parents had the liberty, they'd have written those aren't their children. This is an adoption which happened. You saw the girl, now you say she has behavioural problem. Fact remains that soon after you came here, there were problems between mother and child. There was no attempt from parents, either... Had you been biological parents, would you have decided to do the same," the Court pointedly asked the petitioners. 

The counsel for the petitioner parents, Advocate S. Nirmal apprised the Court that the Child Welfare Committee (CWC) could be brough within the purview of 'Specialized Adoption Agency' as defined under Section 2 (57) of the Juvenile Justice Act ('JJ Act'), which aspect was not accepted by the Court.

"Just because you surrender a child, it doesn't vest that agency to be a Specialized Adoption Agency," it said. 

The petitioner further informed the Court that they were asked to move the CWC by the Kerala State Commission for Protection of Child Rights under Section 2(14)(iv) and (v) of JJ Act, to which it reacted strongly. 

"These are all specialized agencies, entrusted to non-specialized people. There is no other area which is given as low priority in our nation as child rights. Section 2(14) of the Act defines child in need of care and protection. Includes child who is mentally ill or physically challenged.. having nobody or parents unfit to take care... you are thinking to brand her as an unfit person with anger issues. I will not stand with that," it observed. 

The Court added that the girl in question had never been declared as mentally unstable, nor was there anything in the case to prove that her adoptive parents were unfit or incapacitated to take care of her. 

Taking note of the reliefs sought by the petitioners firstly asking the CWC to file the application for annulment and secondly, seeking the District Magistrate to annul the adoption, the Court proceeded to state that it could peremptorily dismiss the writ, but that it did not resort to the same since it firstly wanted to help the situation, and secondly, was concerned about the girl in question. 

"I am speaking in parens patriae now. The girl is after all a human being young enough to be anyone's daughter here. Annulment is one thing, her life is another which is more important to me now. Anyone in this court who understands this case, understands my angle. You are trying to make her a destitute again. What happens to the girl when you walk away? Of course, it is none of your concern. If I have to do it properly, I have to do it through the process known to law. Only then can I rehabilitate her,"  Justice Ramachandran said. 

Addressing the anger issues of the girl which the petitioners had cited as being one of the reasons for seeking the annulment, the Court observed, 

"Many parents have adjustment problems with children, this is not the first. There is no doubt in my mind that writ has to be dismissed peremptorily unless you show me some way. But now I am concerned about the child. She only needed good counselling. She is feeling lonely and a destitute. Have you ever thought of the girl's mind? Do you know what she is going through? She didn't come to you asking you to be her foster parents but you went to her asking her to be your adopted daughter. Your obligations are higher both morally and ethically". 

The Amicus Curiae Advocate Parvathi Menon A. also informed the Court that neither the Adoption Regulations, 2022, nor the JJ Act would apply in the present case since the girl in question was now a major, which the Court accepted. 

The Amicus opined that the girl was also entitled to maintenance under Section 125 Cr.P.C., the Protection of Women from Domestic Violence Act, 2005, or under the Hindu Adoption and Maintenance Act, 1956. 

Advocate Menon added that the question as to whether the parents wish to exclude the girl from inheritance would be for them to decide, and stated that she had apprised the Chief Secretary of the State and the National Commission for Women regarding relocating the girl to a safe environment in her home state.

To this, the Court cast its doubt as to whom it could entrust the girl with at the Ashram, expressing its concern since the girl had now attained the age of majority.

It directed Advocate Menon to further interact with the girl in order to ascertain whether she wished to continue in Kerala and her educational needs. 

The matter has been posted for further consideration to December 22, 2023. 

Case Title: XXX v. Child Welfare Committee

Case Number: WP(C) 35823/ 2023