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A Hindu couple entered into an agreement with a Muslim Couple that they will give their child to the Muslim couple at birth. The Hindu couple claimed that they were financially unable to raise the child.
The Karnataka High Court recently dismissed a petition filed by a Muslim Couple against dismissal of their plea under Sections 7 to 10 and 25 of the Guardians and Wards Act, 1890 to appoint them as adoptive parents of a Hindu child.
The bench of Justice B Veerappa and Justice K. S. Hemalekha noted that the Muslim Couple and the biological parents of the child had entered into an agreement in respect of child's adoption even before the child was born.
Court said, "It is shocking that an agreement is entered into between the parties in respect of an unborn child".
Court further stressed that the agreement for adoption was an invalid document and it was not permissible under the principles of Mohammedan Law.
"....the Mohammedan Law does not recognise adoption. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Dagadabai (dead) by legal representative v. Abbas alias Gulab Rustum Pinjari (2017)," the court stated.
Court further noted that the agreement was done as the biological parents of the child claimed that they were poor and were financially unable to raise the child. The court said,
"The District Child Protection Unit to take the responsibility of all such cases. It is well settled that 'an unborn child has a life of its own and rights of its own' and the rights of unborn are recognised by law".
Court held that by entering such an agreement, the Muslim couple and biological parents of the child violated the rights of the child guaranteed under the provisions of Article 21 of the Constitution of India as on the date of agreement the mother of the child was on the verge of completing nine months of her pregnancy.
Court said, "...If the unborn has life, though it is not a natural person, it can certainly be considered as a person within the meaning of Article 21 of the Constitution, for there is absolutely no reason to treat an unborn child differently from a born child".
The court said that if the biological parents of the child really wanted to give the child for adoption due to poverty, they could have surrendered the child to the concerned authority for the welfare of the child.
"Even if that was not possible, they could have taken care of the child by sending the child to Government Educational institutions," it said.
Court said that the Government has introduced many schemes to overcome, or to streamline poverty and if the poor have self-confidence and respect, they can lead families by taking loans from Banks. "...instead of that, appellant Nos.3 and 4 (biological parents) have sold the child in the name of adoption, which cannot be tolerated," said the court.
Therefore, stating that the State Government is providing so many benefits for the welfare of Society, that too, for the people below the poverty and Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015, clearly explains procedure regarding the surrender of the child, court held that the agreement between the couple and the biological parents of the child could not sustain.
Court ordered that if the biological parents really wanted their child back, who is presently in welfare custody of Krishna Anugraha Centre, Udupi, they could approach the Child Welfare Committee and it will be for the Committee to take appropriate steps and pass orders in accordance with law.
Court further directed that if the Committee decides to let the child go back to her biological parents' custody, the jurisdictional Police will monitor the parents so that the child is not sold to anyone.
Case Title: Shahistha and Others v. State
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