In a significant judgment, the Punjab and Haryana High Court ruled in favour of a minor mother’s independent right as the natural guardian to give her illegitimate child in adoption. Justice Vinod S Bhardwaj also made it clear that the biological father’s consent requirement in case of a guardian was inconsequential under The Hindu Adoptions and Maintenance Act—1956.
Referring to the Act, Justice Vinod S Bhardwaj asserted only the mother of an illegitimate child was the guardian. The law recognided an independent right of the guardian to give the child in adoption. The biological father’s consent was inconsequential since an expression ‘or’ was used in Act. A father could be a guardian in case of an illegitimate child only after the mother. The law did not confer right on an illegitimate child’s father on a par with a legitimate child’s father.null
Justice Bhardwaj also referred to the ‘Juvenile Justice (Care and Protection of Children) Act’ before ruling that an unwanted child of a sexual assault victim might be declared free for adoption by the Child Welfare Committee.
Justice Bhardwaj observed the government had also notified the ‘Adoption Regulations 2017’ in exercise of powers under the Juvenile Justice Act. The fundamental principles governing adoption kept the child’s best interest to be of paramount consideration and gave preference to place a child in adoption with the Indian citizens. It also made it clear that a child eligible for adoption included an orphan, abandoned or a surrendered child. Every child was legally free to be given in adoption once the committee so declared. The state was required to ensure all the needs of a child were met and basic human rights were fully protectednull
The ruling came in a case where sub registrar of documents refused to register the adoption deed by relying solely on a provision of the Hindu Adoptions and Maintenance Act, which said a mother/natural guardian could give the child in adoption only after obtaining the father’s consent
Justice Bhardwaj ruled: “The court feels that mother-natural guardian of the illegitimate minor girl child cannot be left to the mercy of her oppressor. Law would not intend to turn the minor to her tormentor to protect and save her left over dignity, honour and pride and plead his consent for putting her life on correctional and restitutive path…. The law should recognize the right of a mother of an illegitimate child and accept her status as the sole guardian of such child.”
Justice Bhardwaj ruled mandating consent from the father was not required after taking into consideration the statutory provisions. The sub-registrar was also directed to register the adoption deed without raising further objections on lack of concurrence from the biological father.