Hindu Adoptions & Maintenance Act Does Not Envisage Agreement To Adopt 'Unborn Child': Punjab & Haryana High Court

The Hindu Adoptions and Maintenance Act, 1956 does not envisage an agreement to adopt a child, who is not yet born.

The bench comprising Justice M.S. Ramachandra Rao was dealing with a habeas corpus petition by the natural mother of a new born baby boy to get him released from the custody of respondent Nos. 4 and 5 who requested parents of the child to give him in adoption way before he was born.

After the birth of the child, he was taken away by respondent Nos. 4 and 5, who obtained an agreement from the petitioner-mother and her husband allegedly by use of force.

The court noted that the petitioner is the natural mother and the natural guardian of the child. Moreover, the adoption is not valid as per the provisions of The Hindu Adoptions and Maintenance Act, 1956. The court further noted that there is no registered document available regarding the factum of adoption as per Section 16 of the Hindu Adoptions and Maintenance Act, 1956.

It is contended that the petitioner is the natural mother and the natural guardian of the child, that there is no valid adoption as per the provisions of The Hindu Adoptions and Maintenance Act, 1956 (for short 'the Act') and there is also no registered document concerning the adoption as per Section 16 of the Act.

The validity of the fact that petitioner is the natural mother of the baby boy is not contended by the respondents also and there is no registered agreement in favour of the adoption the court added.

Court concluded that the Hindu Adoptions and Maintenance Act, 1956 does not envisage an agreement to adopt an unborn child. Thus, respondent Nos. 4 and 5 cannot claim to be in lawful custody of the minor child in question.

In view of the above, the court allowed present writ petition by the mother and directed the respondents to hand over the custody of the child to her forthwith.

It further granted liberty to the respondent Nos. 4 and 5 to take steps to enforce any agreement, which they have, in an appropriate Court of law against the petitioner and her husband with regard to their claim for adoption.

Case Title : Pooja Rani v. State of Punjab and Others

Citation : 2022 LiveLaw (PH) 160

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