Woman’s marital status irrelevant while giving up her child in adoption: Madras High Court

A woman’s marital status cannot be considered a determining factor for giving up her child in adoption, the Madras High Court recently held. .In an order passed on June 13, Justice GR Swaminathan of the Madurai bench held that a woman, who is the sole guardian of her biological child, must be considered capable of giving up her child for adoption under the Hindu Adoptions and Maintenance Act of 1956 irrespective of her marital status..Justice Swaminathan set aside a January 2022 order passed by the Sub Registrar who had refused to register the adoption deed of a three-year-old child after noting that the child had been born out of an “illicit relationship,” and the biological mother was a minor when she had given up the child in adoption in 2021.However, by the time the adoption deed was completed and the consent of the adoptive parents was secured, the biological mother had become a major. The biological mother was unmarried and had not attained the consent of the child’s biological father, the authorities said.The Court however, rejected such submission and said that the authorities’ refusal to register the adoption deed reflected their “patriarchal” mindset..“The reason given in the impugned refusal check slip betrays the patriarchal mind set of the registering authority. 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. Section 9 of the Hindu Adoptions and Maintenance Act, 1956 uses the expressions “father” and “mother”. It does not use the words “husband” and “wife”. Even the proviso to sub-section (2) of Section 9 does not envisage obtaining the consent of one's spouse, if alive. 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 reason set out in the impugned order is patently unsustainable,” the High Court said..The Court said that the proviso to Section 9(2) of the Act will apply only if the father is around to claim paternity over the child. In the present case, the Court noted that the biological father of the child had not even been identified.It accordingly directed the parties to submit the registration documents before the registering authority and directed the latter to register the adoption deed as long as all other formalities had been fulfilled by the parties..Advocate T Muhilan appeared for Ashok Kumar, the adoptive father and the petitioner in the case.Government Advocate R Raghavendran appeared for the Inspector General of Registration and the Sub Registrar, Pavoorchathram district..[Read Order]