A Woman’s Marital Status Does Not Matter When Giving Up Her Child For Adoption: Madras High Court






Justice Swaminathan of the Madras High Court overturned an order issued by the Sub Registrar, who declined to register the adoption deed of a three-year-old child due to the child being born from an “illicit relationship” and the biological mother being a minor when relinquishing the child for adoption in 2021.

Despite the biological mother attaining adulthood by the time the adoption deed was finalized and the adoptive parents’ consent was obtained, she remained unmarried and had not secured the consent of the child’s biological father, as per authorities.

The Court dismissed such arguments and criticized the authorities’ refusal to register the adoption deed as indicative of a “patriarchal” mindset.

The bench said “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. The marital status of the woman cannot be the determining factor. Section 9 of the Hindu Adoptions and Maintenance Act, 1956 uses the expressions “father” and “mother”. It does not use the words “husband” and “wife”. Even the proviso to sub-section (2) of Section 9 does not envisage obtaining the consent of one’s spouse, if alive. It is possible that a child may be born through live-in relationship or on account of illicit intimacy. The mother may like to give the child in adoption in order to ensure proper future for the child. The father may have abandoned his child. He may not be around to assume responsibility. The reason set out in the impugned order is patently unsustainable”.

The Court clarified that the proviso to Section 9(2) of the Act is applicable solely when the father is present to assert paternity over the child.

The Court observed that the biological father of the child had not yet been identified.

Consequently, the Court instructed the involved parties to present the registration documents to the registering authority. The Court further directed the authority to proceed with the registration of the adoption deed, provided that all other necessary formalities had been met by the parties involved.

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