Bombay High Court Quashes Order Granting 2-Yr-Old’s Custody To Biological Parents, Directs Trial Court To Decide Validity Of Adoption

Underlining the sensitivity of the matter, Justice Sharmila Deshmukh held that there will be no extension of time for the final adjudication of the suit, and until then the child, who has been with the adoptive parents since he was two days old, will continue to remain with them.

“Considering the sensitivity of the matter, the trial Court is directed to decide Short Cause Suit No.2830 of 2022 expeditiously and in any event within a period of six months from today. It is made clear that no extension of time will be granted. In wake of the factual position that the child is with the adoptive parents from last two years since he was two days old, the child to remain with the adoptive parents till the final adjudication of Short Cause Suit No.2830 of 2022”, the court held.

The court said that the trial court failed to conduct a comprehensive inquiry into the actual "giving and taking" of the child in adoption. The court highlighted that evidence needed to be presented to establish the actual giving and taking of the child with the intent to transfer the child from one family to another.

The adoptive parents filed an Adoption Petition on September 18, 2021, before the Mumbai City Civil Court seeking an appropriate court order in order to legally adopt the child. They claimed that the biological parents had willingly surrendered their child for adoption and presented even executed an adoption deed on July 16, 2021.

The biological parents claimed that they lost their jobs during the pandemic, and due to poor financial conditions decided to keep the child in an institution for some days. They submitted affidavits asserting that they had signed the deed without reading, explaining and understanding the consequences. They expressed their readiness and willingness to maintain their son.

The trial court dismissed the adoption petition on March 16, 2022, on the grounds of lack of consent of biological parents, and unregistered adoption deed. The adoptive parents’ review petition was rejected on March 8, 2023. The biological parents filed a Miscellaneous Application in the Adoption Petition, seeking their child’s custody. The City Civil Court on March 8, 2023, directed the adoptive parents to hand over his custody to the biological parents.

Thus, the adoptive parents filed the present writ petition assailing the dismissal of the adoption petition, the dismissal of the review petition and the order in miscellaneous application directing the handing over of custody of the minor child.

The court opined that there was no requirement of filing the Adoption Petition in the first place, as prior permission from the court is not required unless both parents are dead or have renounced the world or have abandoned the child or have been declared by a court to be of unsound mind.

Section 11(vi) of HAMA provides that the child to be adopted must be actually given and taken in adoption by the parents with the intent to transfer the child from the family of its birth to the family of its adoption.

“the appropriate course would have been to direct the parties to file substantive suit so that the matter can be adjudicated by leading evidence to establish that the conditions of valid adoption were satisfied. It is to be noted that as per provisions of Section 15 of HAMA, valid adoption cannot be cancelled and, as such, inquiry into the validity of adoption by leading evidence is necessitated”, the court opined.

The court clarified that while a registered adoption deed would lead to a presumption of validity, the law did not mandate the registration of adoption deeds. Thus, the trial court could not have decided the issue in a summary manner, the court held.

Once the Adoption Petition was disposed of on March 16, 2022, the City Civil Court became functus officio and could not have entertained the Miscellaneous Application to grant custody to the biological parents, the court held.

The court set aside the impugned orders but emphasised that the issue is not concluded in favour of the adoptive parents. The court directed the City Civil Court to expeditiously decide the adoptive parents’ Short Cause Suit seeking a declaration of the adoption's validity.

Case no. – Writ Petition No. 6461 of 2023

Case Title – ABC v. XYZ