Consent Of Rape-Accused Biological Father Not Necessary: Karnataka HC Directs Registration Of Adoption Deed
The Karnataka High Court has held that in cases where a child is born as a result of an alleged rape, the biological mother can give the child up for adoption without the consent of the rape-accused biological father. The consent of the biological father in such circumstances is "both inconsequential and immaterial," the Court said.
The Court was hearing a Writ Petition seeking the quashment of the decision of the Sub Registrar rejecting the application for registration of the adoption deed on the ground that the application is incomplete as the biological father of the child to be adopted was not mentioned as an executing party. The issue before the Court was whether the consent of the biological father of a child born out of rape who is also the accused in the rape case is required, in addition to the consent already provided by the minor victim mother and her guardian, for the purpose of giving the child up for adoption.
A Single-Judge Bench of Justice Hemant Chandangoudar held, "[T]he consent of the rape-accused biological father of the child is both inconsequential and immaterial. The adoption of the subject child herein as per the Irrevocable Adoption Deed dated 11.11.2024 is in full compliance with the provisions of the JJ Act, 2015, the Rules, 2016, and the Regulations, 2017."
The lead Petitioner in the case was a Muslim minor, who is a victim of rape and the biological mother of the child. She was before the Court with her mother and a Muslim married couple, the prospective adoptive parents. The biological father of the child, who is the rape accused, is currently in judicial custody awaiting trial and was not impleaded as a party in the present petition.
The minor and her mother submitted that that they were in dire financial distress and unable to provide basic necessities or ensure the overall development of the child. The married couple, who have no children, expressed their willingness to adopt the child and consequently executed an Irrevocable Adoption Deed.
The Sub-Registrar rejected the application seeking registration of the Adoption Deed on the ground that the biological father of the child had not been included as a consenting party in the Adoption Deed. Aggrieved by the rejection, they filed the present Writ Petition seeking a direction to the Sub Registrar and the Inspector General of Registration to consider their application for registration the adoption deed.
The Court referred to the Punjab and Haryana High Court's Judgment in Amrik Singh and Others v. Union Territory of Chandigarh (2023) addressing a similar issue concerning the adoption of a child born to a minor rape victim. The Court held that the minor victim mother, as the sole natural guardian, has the right to give the child in adoption, without requiring the consent of the biological father, a rape convict.
In that Judgment, the High Court interpreted Section 9(1) of the Hindu Adoptions and Maintenance Act, 1956, to provide guardians an independent right to place a child for adoption. It ruled that requiring the biological father’s consent would violate the minor victim’s dignity and constitutional rights under Article 21. Relying on the Juvenile Justice Act, and the positive report of the District Child Protection Unit, the Court facilitated the adoption without necessitating detailed procedures by the Child Welfare Committee. The Court deemed that the child, under such circumstances, falls within the definition of an 'orphan' under Section 2(42) of the JJ Act.
In the present case, the Court noted that the language of Section 35 of the JJ Act, 2015 is analogous to Section 9(1) of the Hindu Adoptions and Maintenance Act, which recognises the independent right of a guardian to give a child in adoption. "This provides Section 35 of the JJ Act, 2015, a comparable standing to the Hindu Adoptions and Maintenance Act, thereby addressing the adoptive rights of Muslims."
The Court also noted that Regulation 7(7) of the Adoption Regulations, 2017, expressly authorises the mother of an illegitimate child to surrender the child for adoption. It also provides that where the mother is a minor, the Deed of Surrender must be signed by an accompanying adult as a witness.
It was observed that a plain reading of the Adoption Deed revealed that the declarations were consistent with the substance of Section 63 of the JJ Act, 2015, which mandates the complete severance of legal ties, including rights of intestacy, between the biological parents and the adoptee child from the effective date of the adoption order.
"Accordingly, the consent of the rape-accused biological father of the child is both inconsequential and immaterial." the Court concluded. It added that since the biological mother and adoptive parents were joint Petitioners in the present petition, an express declaration by the Child Welfare Committee to the effect that the child was legally free for adoption was not necessary.
The Court directed the Sub-Registrar to register the Adoption Deed without insisting upon furnishing of the consent of the rape-accused biological father to the adoption of the subject adoptee child. The adoptive parents were directed to report the adoption to the jurisdictional District Magistrate, who shall then forward the report of the same to the Central Adoption Resource Authority.
"In conclusion, when the natural guardians of a child are incapable of providing a loving, safe, and nurturing environment, the subject adoptee child, for all practical purposes, falls within the definition of an “orphan.” Failure to give such a child in adoption would deprive them of their right to live with dignity, as guaranteed under Article 21 of the Constitution of India. Hence, adoption in such cases is not only a statutory right but also a moral obligation to ensure the overall welfare and development of the child." the Court said.
Cause Title: Afreen And Ors. v. The Sub Registrar And Anr. [Writ Petition 31063 OF 2024 (GM-RES)]