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

The Punjab and Haryana High Court while dealing with a case of adoption of an unborn

child, held that no such provision as to give effect to adoption of an unborn child is

envisaged under the Hindu Adoptions and Maintenance Act, 1956.

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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