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Synopsis

The Kerala High Court has reaffirmed that adoption by a step parent cannot be permitted if the biological parent of the child does not give consent for such adoption.

The court, presided over by Justice C.S. Dias, dismissed the petition challenging the requirement and held that the Central Adoption Resource Agency (CARA) cannot relax the mandatory consent provision. “As long as the biological parent does not give his consent to the adoption, the adoption by the step- parent cannot be permitted,” the court stated.

The court was hearing a writ petition, filed by the mother of the child along with her current husband, seeking permission for step-parent adoption of the child from her previous marriage. Their application for adoption was rejected by the Child Welfare Committee (CWC) on the grounds that the biological father (fifth respondent) had not consented to the adoption. The petitioners approached the High Court seeking relaxation of the consent requirement under Regulation 63.

The child’s custody had been previously decided by a court order dissolving the marriage between the mother and father, granting shared custody of the child. In a subsequent ruling, the Supreme Court had directed the mother to facilitate phone contact between the biological father and the child.

The petitioner mother contended that since February 2016, the biological father had not attempted to contact or visit the child and even listed himself on a matrimonial website as having no children. Meanwhile, he was also facing criminal charges in the United Kingdom and India. The petitioners urged the court to allow the adoption without his consent, citing the best interest of the child. It was further claimed that Regulation 63 of the Adoption Regulations, 2022, empowered the CARA to relax regulatory conditions, including the requirement of consent from the biological parent.

The biological father, opposed the petition, arguing that the statutory scheme of adoption explicitly mandates the consent of both biological parents. The CARA (first respondent) and the CWC (third respondent) supported this position, emphasising that adoption permanently severs a child's legal ties with the biological parent.

The court, agreeing with the contentions of the respondents, observed: “the fifth respondent has the right to have custody of his child, which will continue till the child attains majority or until the order is modified or cancelled by the competent court. The substantive and intrinsic statutory right of the fifth respondent to have custody of his child is not a matter that can be relaxed and waived by the first respondent under Regulation 63.”

The court cautioned that allowing adoption without the biological parent's consent could set a dangerous precedent, enabling custody deprivation through adoption. It clarified that the power under Regulation 63 is limited to relaxing procedural requirements and does not extend to waiving substantive rights under the Act.

Examining the legal framework governing adoption, the court stated: “In view of the framework of the Act and the corresponding regulations, if a step-parent has to adopt his step-child, the child has to be surrendered by the biological parent by jointly executing a consent letter with the step-parent.”

The court referred to Section 56 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which mandates that a child can be adopted only if declared an orphan, abandoned, or surrendered. Regulation 55(3) of the Adoption Regulations, 2022, further stipulates that if custody rights are under litigation, adoption proceedings cannot commence until the dispute is resolved.

The court further explained the effect of adoption, stating that “once an adoption order is passed, the child is irrevocably and permanently severed from his biological parent and becomes the lawful child of his adoptive parent. Adoption carries significant legal implications, including the inheritance and succession rights of the parent and the child. The moment the adoption order is passed, the child’s ties with his family of birth is displaced.”

Upholding the rights of the biological father, who had not relinquished his custody rights and had actively opposed the adoption, the court found no legal basis to override his consent.

Consequently, the court dismissed the petition finding it meritless.

 

Cause Title: Ammu Ajit v Central Adoption Resource Agency and Ors. [WP(C) NO. 4509 OF 2025]

Appearance: For the petitioners-  Advocates A. Parvathi Menon, P. Sanjay, P.K. Muralykrishnan, Biju Meenattoor, Paul Varghese (Pallath), Kiran Narayanan, Rahul Raj P., Muhammed Bilal V.A., and Meera R. Menon; For the respondents-Advocates Rajesh Sivaramankutty, K.V. Antony, Vijina K., Isaac George, Arul Muralidharan, and Government Pleader Vidya Kuriakose.