Marital Status Of Woman Cannot Be Determining Factor For Giving Up Her Child In Adoption: Madras High Court

Justice GR Swaminathan observed the proviso to Section 9(2) of the Hindu Adoption and Maintenance Act 1956 which mandates consent of the other parent would not apply when the mother/father of the child to be given in adoption is absent.

“The underlying assumption is that an unmarried woman above the age of 18 years cannot give her biological child in adoption. The marital status of the woman cannot be the determining factor… It is possible that a child may be born through live-in relationship or on account of illicit intimacy. The mother may like to give the child in adoption in order to ensure proper future for the child. The father may have abandoned his child. He may not be around to assume responsibility,” the court observed.

The court was hearing a journalist's plea challenging the Registering Authority's refusal to register the deed of adoption. The petitioner, Ashok Kumar, wished the adopt a three-year-old boy “A”, born to “K” who was a minor when she conceived and wished to give the child in adoption.

The authority objected to the plea and submitted that the registration was rightly rejected as the biological father's consent was absent.

The court noted that the parties were bound by the Hindu Adoption and Maintenance Act with “K” being a Hindu and bringing up the child “A” as a Hindu. The court noted that as per the Act, a father or mother could not exercise their right to give their child in adoption without the consent of other parents unless one of the parents had completely and finally renounced the world or ceased to be Hindu.

The court also noted that as per Section 6(b) of the Hindu Minority and Guardianship Act, the mother was the natural guardian of an illegitimate minor boy or illegitimate unmarried girl. Thus, the court noted that “K” was competent to give her biological child in adoption.

Relying on the Apex Court's decision in Githa Hariharan v. RBI, the court noted that the word “after” occurring in Section 6(a) of the Hindu Minority and Guardianship Act did not necessarily mean “after the lifetime” but would mean an “ absence” from the care of the minor's property or person.

The court added that when the father was wholly indifferent to the minor's matter and the mother was exclusively in charge the father could be considered to be absent as was the present case. The court thus noted that it would not be appropriate to ask “K” to obtain the consent of the biological father.

The court thus set aside the authority's order and directed it to register the deed of adoption on the re-presentation subject to the fulfillment of other formalities.

Counsel for the Petitioner: Mr.T.Muhilan

Counsel for the Respondent: Mr.R.Raghavendran Government Advocate

Citation: 2024 LiveLaw (Mad) 247

Case Title: Ashok Kumar v The Inspector General of Registration and Others

Case No: W.P.(MD)No.8416 of 2024