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Synopsis

Addressing a significant question, “whether the consent of the biological father of a child born out of rape who is also the accused in the rape case is required, in addition to the consent already provided by the minor victim mother and her guardian, for the purpose of giving the child up for adoption,” the Karnataka High Court has held that the consent of a biological father, who is the accused in a rape case, is not required for the adoption of a child born out of rape.

A Single judge bench comprising Justice Hemant Chandangoudar,  delivered this ruling while quashing an endorsement by the Sub-Registrar that rejected the registration of an adoption deed citing the absence of the biological father’s consent. The court observed: “the consent of the rape-accused biological father of the child is both inconsequential and immaterial.”

The case originated from a writ petition filed by four petitioners, including a 16-year-old minor rape survivor, identified as Petitioner No. 1, and her mother, Petitioner No. 2, seeking to give up the child for adoption. The minor survivor, who gave birth to a baby girl on September 30, 2024, was unable to care for the child due to extreme financial distress. Petitioners Nos. 3 and 4, a childless Muslim couple, expressed their willingness to adopt the child and executed an Irrevocable Adoption Deed on November 11, 2024.

However, the Sub-Registrar of Yelahanka (Respondent No. 1) rejected the application for registering the adoption deed,on the ground that the biological father of the child had not been included as a consenting party in the Adoption Deed, who is the accused in the ongoing rape case and is currently in judicial custody and awaiting trial. Aggrieved, the petitioners approached the High Court, seeking to quash the rejection and to compel the registration of the adoption deed.

The High Court clarified that the JJ Act, 2015, permits adoption without the biological father's consent, particularly in cases involving a rape survivor and her child. Referencing the case of Amrik Singh and Others v. Union Territory of Chandigarh (2023), the court noted, “the minor victim mother, as the sole natural guardian, has the right to give the child in adoption, without requiring the consent of the biological father (a rape convict).”

The court highlighted that the Supreme Court in the case of Shabnam Hashmi Vs. Union of India and Ors, (2014), extended adoption rights to muslims. It emphasised that Juvenile Justice Act, 2015, is an enabling and a secular legislation which enables the adoption process irrespective of the religious background of the adoptive parents. “Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute,” the court observed.

Recognising the principle of best interest of the child the court stated that “all decisions regarding the child shall prioritize the best interests of the child to help them reach their full potential.”

The court further pointed out that “Regulation 7(7) of the Adoption Regulations, 2017, expressly authorizes the mother of an illegitimate child to surrender the child for adoption. It also provides that where the mother is a minor, the Deed of Surrender must be signed by an accompanying adult as a witness.”

In light of these findings, the court ruled that “Failure to give such a child in adoption would deprive them of their right to live with dignity, as guaranteed under Article 21 of the Constitution of India. Hence, adoption in such cases is not only a statutory right but also a moral obligation to ensure the overall welfare and development of the child.”

Consequently, the court quashed the Sub-Registrar’s rejection and directed the respondents to register the adoption deed.

 

Cause Title: Afreen and Ors. v. The Sub-Registrar and Anr. [WP 31063 OF 2024]

Appearance: Advocate Mahesh Y.L. - for the petitioners; and AGA Naveen Chandrashekar - for the respondents.