By:Rahul Ranjan
The Hindu Adoptions and Maintenance Act, 1956 (hereinafter ‘HAMA’) governs various facets of adoption, including, giving in children for adoption in the Hindu community which extends to Sikh, Buddhist, and Jain communities. In communities where the concept of adoption does not exist, individuals may resort to guardianship under the Guardians and Wards Act, 1890 which is a secular law that governs the appointment of guardians for minors.
There are, however, altogether different provisions and complexities when the issue pertains to children born from rape. For such children, Section 38 of the Juvenile Justice (Care and Protection) Act, 2015 provides for the declaration of these children to be free for adoption by the Children Welfare Committee (hereinafter ‘CWC’), according to the procedure given in the Act.
The angle of consent of the biological parents in ordinary circumstances is addressed by HAMA which provides both parents the same right to give up their child for adoption by virtue of Section 9. But this right cannot be exercised without the other parent’s consent unless one parent has renounced their worldly life, converted to a religion other than Hinduism, or been declared mentally incompetent by a court. Moreover, peculiarities of a case and the degree of involvement of the parent in the child’s life complicate the determination of the importance of such consent. This issue is further exacerbated in cases where children of victims of sexual assault are surrendered for adoption.
PARENTAL VOID
In an array of cases, the court has not considered the consent of the father important when the child was given in for adoption by the mother based on the degree of involvement in the concerned child’s life. Such cases have led the court to interpret various statutes concerning children in a manner where the requirement of the biological father’s consent was done away with. In one such case Githa Hariharan v. Reserve Bank of India, the court clarified that the actions of the mother, as a natural guardian, shall be valid even during the father’s lifetime if the minor is in exclusive custody of the mother. The court interpreted the meaning of “after him” in Section 6(a) of the Hindu Minority and Guardianship Act, 1956 as “in the absence of- be it temporary or otherwise.” Similarly, in ABC v. NCT of Delhi, the court construed Section 11 of the Guardians and Wards Act in a way that the requirement of issuance of notice to such an uninvolved father was done away with.
In Teesta Chattoraj v. Union of India, the court had held that if a parent does not take any measure of responsibility to take care of the child, the courts will consider not to read parental rights in the favour of such parent. Subsequently, in Shweta Gupta v. Rahul Keshav, the court held that though the phrase “renounced the word” in Section 9(2) of the HAMA cannot be interpreted in the sense of renunciation of the child, such renunciation can be considered while determining the measure of consent while giving in to adoption.
PECULIAR CIRCUMSTANCES
In cases of victims of sexual assault, the concept of consent of both the biological parents has often been in favour of the mother as it is taken that welfare of the child will be compromised if the convict is, in any way, involved in the process. Under ordinary circumstances, the mother surrenders the unwanted child to the CWC which, in turn, declares the child free for adoption according to Adoption Regulations, 2022. A case in point is the recent decision by the Supreme Court wherein, the mother of a rape convict had sought custody of the child. The court held that it would amount to nothing but adding injury to the trauma of the victim.
However, due to peculiar circumstances in many cases, the court has given weight to the consent of the biological father. In one such case, the biological father had sought custody of a child who had been given in for adoption by its biological mother. The CWC denied the application, but the Bombay High Court criticized the decision and held that the case was not a “normal POCSO” case as both biological parents were in a relationship that was not accepted by their parents, and the accused was out on bail. The denial order was ultimately revoked.
CHILD RIGHTS CONVENTION AND PARENS JURISDICTION
Various other factors that put an obligation on courts to ultimately interpret the statutes in a manner that consistently elevates the welfare of the child to paramount importance.
In the case of L. Chandran v. Venkatalakshmi, the Andhra Pradesh High Court explained the concept of Parens Jurisdiction. It stated that the legal concept of the lord safeguarding his vassals in exchange for their allegiance in a feudal system persisted into the capitalist legal order, particularly in relation to minors, who are unable to articulate their informed choices. The modern State bears the ultimate responsibility for its well-being, giving rise to the Parens Patriae Jurisdiction of courts, which partakes in the State’s sovereign power. Consequently, courts must consistently prioritize the minor’s welfare in all matters affecting their life.
Apart from this, the cornerstone of international human rights law, the United Nations Convention on the Rights of the Child serves as a comprehensive framework for safeguarding the rights of children. This convention, of which India is a signatory, establishes and upholds the fundamental rights of children globally. Moreover, it emphasizes the establishment of an adoption system that prioritizes the child’s well-being above all else. This convention has been cited in several cases related to adoption to emphasize the welfare of the child and keeping it above everything else.
ANALYSIS
The existing legal framework with respect to adoption under ordinary circumstances requires the consent of both the parents when giving in the child for adoption and the consent of the victim of sexual assault when surrendering the unwanted child to the CWC. However, considering the welfare of the child, as obligated under the law, the courts have interpreted provisions of statutes to do away with the need for consent of the uninvolved parent and even considered the consent of the accused under Protection of Children from Sexual Offences, 2012 (hereinafter ‘POCSO’), given the peculiarities of the cases. The commonality throughout the case laws has been the unwavering emphasis of the courts on the welfare of the child. It is not in the interest of the child to linger on any process pertaining to adoption in the absence of consent of the uninvolved parent. However, it may be considered to be a factor ensuring child welfare to consider the consent of the parent concerning surrendered child, who is out on bail. Though specific cases of a peculiar nature cannot establish a general principle of law, they go on to show that the ‘Principle of Child Welfare’ is kept above all when such matters are considered by the courts.
Understanding how courts deem certain arrangements to be inclined more in favour of the child is essential to maintaining the integrity of the entire system. Owing to the specific circumstances, court in an earlier mentioned case favoured a POCSO accused in child custody dispute which sparked outrage and debate, raising crucial questions about the delicate balance between child welfare and legal principles.
To ensure that such complex issues are dealt effectively and public confidence is kept intact, transparency in the court proceedings should be promoted. Apart from this, enhancing judicial training in child psychology and trauma, strengthening child protection measures through specialized support system, and investing in research on childhood trauma and optimal child custody arrangements are crucial to addressing the complex dilemma of determining the arrangement wherein the child’s welfare is maximised.
CONCLUSION
Giving in a child for adoption in India is a nuanced and intricate undertaking that requires a careful balancing act between safeguarding the child’s well-being and upholding the rights of their biological parents. Consent plays a pivotal role in this process, guaranteeing that the child’s biological parents have their voices heard and their perspectives considered. Whenever there has been an issue in regards to the angle of consent, the courts have exercised their Parens Jurisdiction to prioritize the welfare of the child to all other matters affecting them. While upholding the paramount importance of child welfare, courts must ensure that the child’s well-being is maximised in terms of physical and emotional well-being, stability, and opportunity in any arrangement pertaining to adoption and custody made under their direction.
(Rahul Ranjan is a law undergraduate at National Law University, Odisha The author may be contacted via mail at 22bba038@nluo.ac.in )
Cite as:Rahul Ranjan, Navigating Adoption: Intricacies in the Angle of Consent of the Biological Parents, 18 January 2024<https://rmlnlulawreview.com/2024/01/18/navigating-adoption-intricacies-in-the-angle-of-consent-of-the-biological-parents/>date of access.
The RMLNLU Law Review Blog 