Reevaluating Parental Rights Amidst Ashok Kumar V. Inspector Of Registration And Others
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Category: Property & Real Estate
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REEVALUATING PARENTAL RIGHTS AMIDST ASHOK
KUMAR V. INSPECTOR OF REGISTRATION AND OTHERS
Pankhudi Sinha, Symbiosis Law School Pune
ABSTRACT
Ashok Kumar v. Inspector of Registration and Ors. sets a significant legal precedent in the realms of adoption laws by affirming the biological mother’s exclusive right to give her illegitimate child for adoption when the father remains absent. It challenges the traditional patriarchal view, and highlights the evolving legal and social landscape of adoption under Hindu Adoption and Maintenance Act, 1956. It underscores the mother’s role as primary guardian contrary to the Hindu Guardianship and Minority Act, 1956 and recognizes the need to balance parental rights, ethical considerations and social realities. Ashok Kumar v. Inspector General of Registration and Others In the High Court of Madras Citation: 2024 SCC OnLine Mad 2111.
1 Introduction The present research paper analyses the pivotal precedent set by our Madras High Court and marks a fundamental evolution of adoption lawin the context of illegitimate children. It challenges the traditional norms by affirming that a biological mother, even in absence of biological father’s consent, has the legal right to place her child for adoption. The decision breaks from the historical patriarchal view, wherein father’s approval and guardianship is considered paramount, over the autonomy and legal agency of the mother. Furthermore, there are significant questions about parental responsibilities and ethical dimensions of adoption, keeping the child’s welfare as a paramount.
1 Ashok Kumar v. Inspector General of Registration, 2024 SCC OnLine Mad 2111.
Facts Parties involved- *Pseudonyms titles are given in the judgment to protect privacy of the parties and the minor as per Section. 742 of The Juvenile Justice Act (Care and Protection of the Children) Act, 20153 (Hereinafter JJ Act)-* A
3 year old Male child
K Biological Mother X Unidentified biological Father M & N Prospective Adoptive Parents “A” had his nativity on 28.11.2021 to “K” out of an illicit relationship when “K” was a minor (at the time of conceivement) , making “A” an illegitimate child out of wedlock. “K” coveted to give the child for adoption and M & N stepped up to take the child for adoption. The Deed of Adoption was executed and the all the regulations were complied. Furthermore the deed was tendered for registration but the concerned officer rebuffed on the grounds that “K” had attained majority and remains unmarried at the stage of giving adoption along with that consent of “X” was absent. Petitioner filed Writ of Mandamus4 under Article 2265 of the Constitution of India. The Madras High Court allowed the writ petition and the petition was closed. Analysis Central Legal Issues:
1. What is a woman’s legal status in giving her minor ward for adoption under the case?
2. What are the biological father’s rights and consent requirements for an illegitimate child’s
adoption?
3. What are the conditions for valid adoption under the Hindu Adoptions and Maintenance Act,
1956? 2 The Juvenile Justice (Care and Protection of Children) Act, 2015, §74, No. 2, Acts of Parliament, 2015.
3 The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 2, Acts of Parliament, 2015.
4 Rex V. Barker, et Al’. [(1265) Hilary Term, 2 Geo. 3 B.R. 1762].
5 Constitution of India, art. 226, cl. 2.
4. What are an illegitimate child’s rights if the biological father is unidentified?
5. What are the biological mother’s rights and liabilities in the absence of the father?
Conventional Outlook Adoption as a premise in the classical times meant adoption of only Putras6 in order to: To discharge to offer Pinda, And con4nue the debt owed to his the line of descent pitrus, Thereby making the entire purpose of adoption only to adoption more suitable for the masculine gender, as debts which are owed to the Pitrus , Offering of Pinda and continuing the line of descent could only be performed by the Putras. 7 Women’s descent historically ends with her being married into another household8. The persona of women was only restricted to her designation of Dharma Patni. The child adopted in the family would continue the line of descent, offer Pindas and discharge the debt owed to his ancestors are only restricted to the paternal side of the family9.
Consequently for giving the child for adoption, the father’s approval remained paramount whereas the mother’s was immaterial. 10 This pinnacle in historical adoption was that the child’s first and foremost custodian would be the Patriarch and not the mother. By the virtue of that in the Hindu Custom biological father’s consent is indispensable in nature. Status under Hindu Adoption and Maintenance Act 1956 Since the inception of Hindu Adoption and Maintenance Act 195611 (hereinafter HAMA) Transition took place exempli gratia female minor was permitted to be adopted for the first 6 Riya & Neelaksh, Comprehensive Study on Child Adoption in India with Special Reference to Hindu Laws,
4 INT'l J.L. MGMT. & HUMAN. 1493 (2021).
7 Ibid.
8 Delhi University, https://lc2.du.ac.in/DATA/Womensrighttotakeorgiveachildinadoption.pdf, (Last accessed: Jan 28, 2025.)
9 Ibid.
10 Supra 8.
11 The Hindu Adoption and Maintenance Act, 1956, §8,Acts of Parliament, 1956.
time in 1946 in Lalitha v. Parameshwari12, Section 813 of HAMA any female Hindu to take in adoption which was later amended in Personal Law (Amendment) Act 201014 to include even married women in it, even ceremonies including datta homam15lost its status as a prerequisite. Case Analysis:- Legal Perspective As per Section 2(1)16 the application of the Act would apply to any legitimate or illegitimate, one of whose parents is Hindu, Jain, Buddhist or Sikh. 17 In this case “K” exists as a Hindu and “A” was brought up as a Hindu thereby applicability of personal laws is beyond dispute. As per Section 6(iv)18 requisites of valid adoptions constitutes adoption made in compliance with other conditions in this chapter.
This constructs Sections 919 (Persons capable of giving in adoption) as an pivotal condition for adoption, Section 9(2)20 which codifies that both father and mother have equal right to give the son or daughter for adoption. It must be logged that Section 9 uses the term “ Father and Mother” not “Husband and Wife”, which implies that the person capable for giving adoption need not be Factum of Marriage. This affirms the Section 6(b)21 of Hindu Minority and Guardianship22 which states that for an illegitimate child the natural guardians would be the mother followed by the father. In the case of Prem Kaur v.
Banarsi Das23 it was held that if the father is known then he has preferential right over the child, however in this case the father remains unidentified because identification of the father would consequently attract provisions of Protection of Children from Sexual Offences Act, 201224 (POCSO), furthermore in two Madras High Courts i. e. Rajlakshmi v. Ramchandran25 and Dorai Raj v. SR Lakshmi26 it was asserted that father does not have rights on the illegitimate child unless offered by the mother.
12 Lalitha v. Parameshwari 2001 Mad 363.
13 The Hindu Adoption and Maintenance Act, 1956, §8, No. 78, Acts of Parliament, 1956.
14 The Personal Law (Amendment) Acct, 2010, §3,No. 30, Acts of Parliament, 2010.
15 Cowell, H., 1870. The Hindu Law
Being a Treatise on the Law Administered Exclusively to Hindus by the British Courts in India (Vol. 1). Thacker, Spink and Company.
16 The Hindu Adoption and Maintenance Act, 1956, §2(1), No. 78, Acts of Parliament, 1956.
17 Ibid.
18 The Hindu Adoption and Maintenance Act, 1956, §6(iv), No. 78, Acts of Parliament, 1956.
19 The Hindu Adoption and Maintenance Act, 1956, §9, No. 78, Acts of Parliament, 1956.
20 The Hindu Adoption and Maintenance Act, 1956, §9(2), No. 78, Acts of Parliament, 1956.
21 The Hindu Minority and Guardianship Act, 1956, §6(b), No. 32, Acts of Parliament,1956.
22 The Hindu Minority and Guardianship Act, 1956, No. 32, Acts of Parliament,1956.
23 Mussammat Prem Kaur v. Banarsi Das, 1933 SCC OnLine Lah 314.
24 The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012.
25 Rajlakshmi v. Ramachandran, AIR 1967 Mad 113.
26 Dorai Raj v. SR Laskhmi, AIR 1946 Mad 172.
The absolute proceedings of the case was on the premise of “Lex Non Cogit Ad Impossibilia”27 which states “Law does not compel a person to do that which he or she cannot possibly perform”, “K” cannot naturally obtain the consent of the biological father as that would need identification which “K” refrains from doing so and compelling “K” to identify the father would violate her Article 21 of the Constitution of India28. Thereby, if the father stands wholly indifferent to the matter then the mother would gain exclusive custody, and would validly act on the behalf of the minor. Thus, Section 9(2) of HAMA29 is obsolete in the present case, and the mother would effectively give the child for adoption. Social Perspective This case sets a significant precedents by affirming that biological mother may place her illegitimate child for adoption while the biological father is alive.
This shifts the traditional family dynamics by giving autonomy to biological mother. Under Section 6(a)30 of the Hindu Minority and Guardianship Act, the father is recognised as the first natural guardian of a legitimate child. However, in case of an illegitimate child the responsibility primarily falls on the mother. This distinction stems from deeply ingrained patriarchal norms, where fathers of illegitimate child often face fewer societal repercussions and retains the choice to be present or absent in their child’s life. In the contrast, mothers are effectively denied the choice, bearing dual burden of responsibility and societal judgement. The opposing arguments often asserts that the mother naturally assumes the primary caregiving role, particularly for the children under the age five, as acknowledged in Section 631 of Hindu Minority and Guardianship Act.
However, if this caregiving role forms the basis of distinction, it logically follows that the mother should be regarded as the first natural guardian of legitimate child, thereby challenging the existing framework. In the present case the registrar denied the registration as they assumed that the father would be the first natural guardian making its consent indispensable. The author agrees that the consent should be paramount if the father was involved however, if the father is not present 27 Ghambaryan, A. S. , 2023. The Development of Law Contra Legem Based on the Legal Maxim'The Law Never Requires Impossibilities'. Perm U. Herald Jurid. Sci. , 62, p. 552.
28 Constitution of India, art. 21, cl. 2.
29 The Hindu Adoption and Maintenance Act, 1956, §9(2), No. 78, Acts of Parliament, 1956.
30 The Hindu Minority and Guardianship Act, 1956, §6(a) No. 32, Acts of Parliament,1956.
31 The Hindu Minority and Guardianship Act, 1956, §6 No. 32, Acts of Parliament,1956.
then the consent should not be required for either giving or taking adoption. This case also has a potential to marginalise fathers raising the questions about the balance between parental rights and responsibility. Assuming the biological father was identified in this case, paramount question arises : Would the consent of biological father matter in the case of giving adoption? The verdict should remain “No” – simply as if a guardian does not take the parental responsibility they ought not to have parental rights. In the case of Jagdish Jugtawat v. Manju Lata32 the Supreme Court observed father’s obligation and responsibility under Section 125 of the CrPC33 to maintain an illegitimate child, however in this case since the father is unidentified it could be concluded that no maintenance or child support was being paid to “K”.
In such complex situation one may not be able to satisfy Section 9 of HAMA34, which ultimately lead to an invalid adoption as per Section 6 of HAMA35. The Madras High Court decision in this case is welcome as it rather than going into the nitty-gritty of the Sections under HAMA understands the social and ethical implications. Ethical Perspective This case also raises issues on the historical concept of lineage, the Father’s name and descent are paramount in determining the child’s position within the society even after adoption, this could also be substantiated in the Doctrine of Relation Back36 which makes the adopted son entitled to the shares of the deceased father in the joint property as that child would continue the linage.
If the biological mother alone decides to place the child for adoption, this could be detrimental for the biological father’s descent and lineage to continue, along with that identity of family heritage, potential inheritance from the father would remain in a limbo. Since the biological father has not consented to the adoption, the doctrine of non-divestiture could be invoked to argue that the child cannot be fully severed from his biological father’s lineage, especially in terms inheritance rights or the continuation of the biological father’s descent. In this case the biological father is good as dead thus, the doctrine of Non Divesture37 shall
32 Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422.
33 The Code of Criminal Procedure, 1973, §125, No. 2, Acts of Parliament, 1974.
34 Supra 19.
35 Supra 31.
36 Law, University of Kashmir, https://law.uok.edu.in/Files/5ce6c765-c013-446c-b6acb9de496f8751/Custom/adoption%20chapter%205-final.pdf, (Last accessed: Jan 28, 2025)
37 Ibid.
apply which states that child given in adoption after the death of his father does not lose the right and title in the coparcenary property. If the biological father’s rights are vested by law , his right to pass on the property or asset to the child cannot be undone by adoption unless expressly determined through legal proceedings. The decision of the Madras High Court could be questioned on erasure or alteration of biological father’s legacy, deprive the child from inheritance, challenges paternal roles, and if the biological father in distant future wants to reconnect, denies such opportunity. The court failed to notice “A bad person can still be a good father”. Conclusion The Madras High Court’s decision in this case establishes a significant precedent that emphasizes on the autonomy of a biological mother in placing her illegitimate child for adoption.
Interpreting provisions of HAMA and Hindu Minority and Guardianship Act, the court upheld the rights of the mother as the natural guardian of an illegitimate child dismissing the necessity of father’s consent in such circumstances. This decision not only aligns with the constitution right to liberty under Article 21 but also addresses broader societal and ethical dimensions, challenging traditional patriarchal norms. The verdict prioritizes the child’s welfare and social realities face by a single mother, while ensuring compliances with the legal principles. While it is undeniable that it raises questions about the balance between parental rights and responsibilities and the implication for inheritance and lineage, the judgement ultimately sets a progressive tone in recognizing the rights and autonomy of biological mother.