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  • S. Keerthana

WOMEN’S MARITAL STATUS IRRELEVANT WHILE GIVING UP HER CHILD IN ADOPTION: MADRAS HIGH COURT

S. Keerthana,

Dr. Ambedkar law university, Soel

WOMEN’S MARITAL STATUS IRRELEVANT WHILE GIVING UP HER CHILD IN ADOPTION

INTRODUCTION:

The Madras High court on 13th June 2024 passed the order that a ‘Women’s marital status cannot be considered as an important factor while giving up her child in adoption’. This order was passed in a case where a journalist and his wife, Government employee, sought to adopt a three-year old boy from his minor mother who is in a illicit relationship. This ruling helps the Womens to recognize their Decision making authority regarding every matter of their child. The mother of the child has full right to decide upon what is good and what is bad for her child. The marital status of the women will not stop her from making decision for her child well-being. It helps to overcome social stigma associated with single motherhood. The ruling also helps to place the children in a good environment which his or her mother cannot provide as a single parent. A child needs both mother and father and a positive environment. By this ruling a single mother who cannot provide her children with good environment can give her child to adoption for the better future of the child. This ruling acts as a precedent for the future cases if it is of a same fact. It also helps in promoting consistent and fair judgment in similar cases across the judiciary. The bench rightly held by making the marital status of a women irrelevant while giving her child in adoption ensures no one should be discriminated and everyone should be treated equally before the law. It provides a clarity in the matter of adoption that both men and women are treated equally while giving his or her child in adoption. This ruling gives policy makers to develop new policies that would benefit single parents to raise their by providing them with food, cloths, shelter, education and to provide environment that will protect the child both physically and mentally.

BACKGROUND:

‘A’ a three-year old boy who was given in adoption by ‘K’ his biological mother. ‘A’ born out of a illicit relationship to ‘K’. So for the better future of ‘A’, ‘K’ decided to give him in adoption to the couple. When the Adoption deed was presented to district Authority for registration. The Authority refused to register the Adoption deed for invalid reason[1].  

HINDU ADOPTION AND MAINTENANCE ACT, 1956:

The Hindu Adoption and Maintenance Act (HAMA) was came into force in the year 1956 as a part of Hindu Code bill. The main objective of this Act is to provide procedure and guidelines through which an Hindu Male or Female can adopt a child legally. This Act applies to Hindu, Buddhist, Jains and Sikhs. If a Hindu Male or Female wishes to adopt a child then they must fulfil the conditions prescribed in the Act such as the person must be of a sound mind and should not be a minor. If the Hindu Male is married then he must obtain the consent of his wife before the Adoption. The child which is being given in adoption must be Hindu and be under 15 years of age. Once the child given in Adoption then the Adoption is irrevocable and the Adopted child will have the same right as that of a biological child. This Act also contains provisions about obligation of the Hindu Male to maintain their Wife, Children and Aged parents[2].

DECISION OF THE COURT:

Justice G.R. Swaminathan offers very wide interpretation about Section 9 of Hindu Adoption and Maintenance Act, 1956. In which he states that Section 9[3] uses the expression ‘father’ and ‘mother’ rather than ‘husband’ and ‘wife’ and even Sub – Section (2) of Section 9 does not contain about obtaining the consent of one’s spouse, if alive.

He further explained “It is possible that a child may be born through a live – in relationship or an account of illicit intimacy, the mother may give up her child in adoption for the better future of her child. The father may have abandoned his child. He may not be around to assume responsibility”.

In the case of Ashok Kumar v. The Inspector General of Registration and Others[4].  A writ petition was filed by challenging the refusal to register Adoption deed by district authority. The fact of the case is that a couple decided to Adopt a three-year old boy who was born out of an illicit relationship. The mother of the child was minor while she conceived him. The issue in this case is that the Adoption deed has been executed and presented for registration but the district authority refused to register the Adoption deed.

The district authority refused to register the adoption deed and states that ‘the child’s biological mother has attained the majority during the adoption and also there is a Absence of consent from the child’s biological father’.  Court said that “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[5]”.

 

The court observed that the answer for this issue lies in Section 6(b)[6] of the Hindu Minority and Guardianship Act, 1956 states that ‘In case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, father…. On the commencement of the Act, the mother of the illegitimate child will be the guardian of his person and his property. So in the present case the mother of the three-year old boy child was competent enough to give him in adoption.

The court furthermore observed that Section 9(2)[7] would apply only if the father is around to claim paternity over the child. To give more clarity to this matter, the court referred the case of Githa Hariharan v. Reserve Bank of India[8], this a landmark case decided by the supreme court which largely influenced the Adoption laws and Women’s rights. In this case Githa Hariharan challenged the legality of the Adoption laws when she was denied the right to be a Natural Guardian to her minor child while in the absence of her husband. The opposite side Reserve Bank of India rejected her application as her son’s Natural Guardian for certain investment pointing out that only the child’s father could be a Natural Guardian as stated in Section 6(a) of Hindu Adoption Act. So Githa Hariharan contended that Section 6(a) of the Hindu Adoption and Maintenance Act, 1956 is discriminatory and violates the Equality principle enshrined in Indian Constitution. After hearing all this the Supreme court held that the “term ‘after’ should not be interpreted in a manner in which it implies that the mother can be the guardian of the child after the absence or death or incapacity of the father. Instead the court interpreted the term ‘after’ as ‘in the absence of’ the biological father the mother could also act as a natural guardian to her minor child during the lifetime of the father in certain circumstances”.

The court observed that in the present case the father being absent and mother being sole responsible to the three-year old boy, she could not to be able to obtain the consent of his biological father.

CONCLUSION:

By concluding this case the court set aside the impugned order and allowed the parties to present the Adoption deed. He also directed the registering Authority to register the Adoption deed by following the usual formalities and procedure. This decision plays a significant role in the society and protects the illegitimate child. This decision also emphasizes the women’s right to make choice about the adoption of her child and should not contingent upon the whether she is married, widowed, divorced or unmarried. The judgment plays a significant role in upholding the principle of Equality provided in the Indian Constitution and helps to Abolish Patriarchal norms that undermine the role of the women in the matter of Adoption and Custody matter. This ruling has a major impact on the Adoption Laws by making both parents equal to the matter of Adoption and Safety of the child. The court held that the Child’s Welfare is more important. So both parents can exercise their Guardianship duty without any discrimination. This case gives idea to the lawmakers to review the existing laws which are gender biased and to promote just and fair laws for the welfare of the society. It also empowers the women to raise voice against the gender discrimination and to promote equal treatment in Social, Economical and Legal aspect. This case will prevail as a important precedent for Future Judicial Decision.

REFERENCE:

WEBSITES:

1. Ayesha Arvind, Woman’s marital status irrelevant while giving up her child in adoption: Madras High Court, Barandbench, 18 June 2024, 8.46 am, https://www.barandbench.com>News.

2. Apoorva, ‘Marital status of woman cannot be the determining factor for giving her child in adoption’, Madras HC sets aside Registering Authority’s order refusing to register adoption deed, SCC Online Times, June 17, 2024, https://www.scconline.com.

3. Upansana Sanjeev, Marital Status Of Woman Cannot Be Determining Factor For Giving Up Her Child In Adoption: Madras High Court, live law, 14 June 2024 5:20 Pm,https://www.livelaw.in/high-court/madras-high-court/madras-high-court-marital-status-woman-not-determining-factor-while-giving-child-in-adoption-260541

[1] Apoorva, ‘Marital status of woman cannot be the determining factor for giving her child in adoption’, Madras HC sets aside Registering Authority’s order refusing to register adoption deed, SCC Online Times, June 17, 2024, https://www.scconline.com>blog>past>2024/06/17.

[2] Hindu Adoption and Maintenance Act, &7, 78, Act of parliament, 1956 (India)

[3] Hindu Adoption and Maintenance Act, &9, 78, Act of parliament, 1956 (India)

[4] Ashok Kumar v. Inspector General of Registration, W.P. (MD) NO. 8416 of 2024, order dated 13-06-2024.

[5] Ayesha Arvind, Woman’s marital status irrelevant while giving up her child in adoption: Madras High Court, Barandbench, 18 June 2024, 8.46 am, https://www.barandbench.com>News.

[6] Hindu Minority and Guardianship Act, &6(b), 32, Act of the parliament, 1956 (India).

[7] Hindu Minority and Guardianship Act, &9(2), 32, Act of the parliament, 1956 (India)

[8] (1999) 2  SCC 228.

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