Karnataka High Court


Karnataka High Court: While deliberating over a curious scenario wherein the biological parents of a child unborn, entered into an unregistered agreement for adoption with the alleged adoptive parents, the Division Bench of B. Veerappa and K.S. Hemalekha, JJ., expressed their shock over such an agreement and stated that both parties entered into an agreement in respect of an unborn child, which is unknown to law. It was held that both the biological and adoptive parents have violated the rights of the child guaranteed under Art. 21 of the Constitution. The very agreement for adoption entered between the parties is invalid document and the same is not permissible under the principles of Mohammedan Law. The Bench strictly observed that “The Government has introduced many schemes to overcome, or to streamline the poverty (…) instead of that, appellants have sold the child in the name of adoption, which cannot be tolerated”.

Facts of the Case: Appellants 3 and 4 (belonging to Hindu community) are the biological parent of the child who is in the eye of this legal storm. Meanwhile, Appellants 1 and 2 (belonging to Muslim community) were a childless couple. Owing to their poverty, appellants 3 and 4 entered into an agreement for adoption with Appellants 1 and 2 dated 21-03-2020 that, post- delivery of the child, they will take care of the child and raise the child with dignity. As on the date of the agreement, the child was in the womb of appellant 4 and was born on 26-03-2020, i.e., after five days of the agreement entered between the parties. The first party to the agreement i.e., appellants 1 and 2, also inserted the condition that the second party (appellants 3 and 4) will not claim any money from the first party.

After the adoption was completed as per the afore-stated agreement, the child was adopted and appellants 1 and 2 have looked after and raised the child as their own daughter with love and affection for two years.

However, a complaint was lodged by the Legal-cum-Probation Officer, District Child Protection Unit, Udupi, against appellants 3 and 4 stating that they have illegally sold the child to appellants 1 and 2. With the matter developing a complexity, the child was returned to the custody of the biological parents, thereby leading appellants 1 and 2 to seek remedy from the Court to appoint them as adoptive parents of the child.

Legal Trajectory: The matter reached the Trial Court. The biological parents of the child came up with their vakalatnama and filed memo to the effect that they have no objection for the petition filed by the adoptive parents. However, the petition was dismissed by the Trial Judge.

Contentions of the Appellants: The appellants contended that the Trial Court failed to appreciate the sanctity of the fact that the adoptive parents of the child and the biological parents had entered into an agreement with respect of adopting the child in question even before the child was born on 26-03-2020 and hence, the question of having sold the child does not arise.

It was further contended that the petition filed by the adoptive parents was dismissed by the Trial Court only on the ground that, the biological parents were Hindu and Court did not state anything in respect of applicability of Hindu Adoption and Maintenance Act, 1956. It was argued that conversion to different faith cannot be regarded as a disqualification for custody of the minor child.

Contentions of the Respondents: Per contra, the respondents argued that the Trial Court was right in dismissing the petition as the agreement between the parties was unregistered.

It was contended that an agreement vis-a-vis an unborn child is ‘unknown to law’

Further submission stated that Mohammedan Law does not recognise adoption.

it was further argued that Court has a duty to consider the welfare of a child.

Thus, the respondent’s argument was that the biological parents and adoptive parents, entered into an unregistered agreement of an unborn child in the form of adoption, which creates a doubt.

Court’s Assessment:

Perusing the peculiar facts of the case, the agreement and considering that whether case has been made by the appellants which warrants the High Court’ interference, the Division Bench stated that not only the agreement was made for an object that was unknown to law, but the child was also given in adoption for money.

It was further stated that it is well settled that an unborn child has a life and rights of its own and the rights of unborn are recognised by law. “No doubt, only if the unborn can be treated as a person, the right to life of the unborn can be equated with the fundamental right of the mother guaranteed under Art. 21 of the Constitution (…) the unborn has life from the stage it transforms into foetus. If the unborn has life, though it is not a natural person, it can certainly be considered as a person within the meaning of Art. 21 of the Constitution”.

It was noted that in the present case, as on the date of agreement, appellant No.4 was nine months pregnant and she delivered the child after five days of the agreement, thereby the child has a every right to lead life with dignity and honour as contemplated under Art. 21 of the Constitution. It was held that both the biological and adoptive parents have violated the rights of the child guaranteed under the Constitution.

The Court also held that the respondent was right in filing a complaint against the appellants and the Trial Court also rightly dismissed the petition.

the Court sternly observed that if the appellants 3 and 4 wanted to give up their child for adoption due to poverty, they could have surrendered the child to the concerned authority for the welfare of the child. Even if that was not possible, they could have taken care by sending the child to government educational institutions.

The Court held that the agreement in question cannot be sustained in light of various governmental programmes to alleviate poverty and statutory scheme of Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The Court directed the biological parents, to approach the Child Welfare Committee, if they really want their child back and it is for the Child Welfare Committee to take appropriate steps and pass orders in accordance with law. Furthermore, if the Child Welfare Committee, after consideration, concludes about handing over the child to biological parents, then the jurisdictional Police must monitor the biological parents so that the child is not sold to anyone and ensure that the parents shall take care of the paramount interest of the child.

[Shahistha v. The State, 2022 SCC OnLine Kar 1596, decided on 30-11-2022]

Advocates who appeared in this case :

Haleema Ameen for the Appellants;

Vijayakumar A. Patil, A.G.A., A/W Kiran Kumar, H.C.G.P. for the Respondents.

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

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