A woman’s marital status cannot determine her ability to give up her child for adoption, the Madras High Court recently ruled.
On June 13, Justice G.R. Swaminathan of the Madurai bench held that a woman, as the sole guardian of her biological child, can give up her child for adoption under the Hindu Adoptions and Maintenance Act of 1956, regardless of her marital status.
Justice Swaminathan overturned a January 2022 order by the Sub Registrar, who had refused to register the adoption deed of a three-year-old child, citing that the child was born from an “illicit relationship” and that the biological mother was a minor when she initially gave up the child in 2021.
However, by the time the adoption deed was completed and the adoptive parents’ consent secured, the biological mother had become an adult. The authorities also noted that the unmarried biological mother did not obtain consent from the child’s biological father.
The Court dismissed this reasoning, criticizing it as a reflection of a “patriarchal” mindset.
“The reason given in the refusal check slip reveals the patriarchal mindset of the registering authority. The assumption is that an unmarried woman above the age of 18 cannot give her biological child in adoption. The marital status of the woman is not the determining factor. Section 9 of the Hindu Adoptions and Maintenance Act, 1956, refers to ‘father’ and ‘mother’, not ‘husband’ and ‘wife’. Even the proviso to subsection (2) of Section 9 does not require the consent of one’s spouse if alive. A child may be born from a live-in relationship or illicit intimacy. The mother may want to give the child in adoption for a better future. The father may have abandoned the child or not assume responsibility. The reason in the impugned order is unsustainable,” the High Court stated.
The Court noted that the proviso to Section 9(2) of the Act applies only if the father claims paternity. In this case, the biological father had not been identified.
The Court directed the parties to submit the registration documents to the registering authority and instructed the latter to register the adoption deed, provided all other formalities were fulfilled.
Advocate T. Muhilan represented Ashok Kumar, the adoptive father and petitioner. Government Advocate R. Raghavendran represented the Inspector General of Registration and the Sub Registrar of Pavoorchathram district.
