The Madras High Court has ruled that a woman’s marital status should not be a decisive factor in her child’s adoption process. Justice GR Swaminathan highlighted that the proviso to Section 9(2) of the Hindu Adoption and Maintenance Act, 1956, which requires the other parent’s consent, does not apply if the other parent is absent.
Justice Swaminathan noted that the assumption that an unmarried woman above 18 cannot give her child for adoption is flawed. He emphasized that a child’s birth circumstances, such as a live-in relationship or illicit intimacy, should not prevent the mother from ensuring a better future through adoption, especially if the father has abandoned the child.
The case involved a journalist, Ashok Kumar, who wanted to adopt a three-year-old boy “A” from “K,” a minor mother at the time of conception. The Registering Authority refused the adoption due to the lack of the biological father’s consent. However, the court found that “K,” being a Hindu and raising “A” as a Hindu, had the right to give her child in adoption under the Hindu Adoption and Maintenance Act.
The court referenced the Supreme Court’s decision in Githa Hariharan v. RBI, clarifying that the term “after” in Section 6(a) of the Hindu Minority and Guardianship Act signifies absence, not necessarily death. Therefore, the father’s indifference equates to absence, making “K” the competent guardian.
The court directed the authority to register the adoption deed upon fulfillment of other formalities, affirming the mother’s right to decide her child’s future.
