'Law Must Yield To Justice': Allahabad High Court Permits Woman With 4 Biological Children To Adopt Child Despite Legal Bar

The Allahabad High Court recently permitted a woman having four biological children to adopt a child, despite a legal bar under Adoption Regulations 2022, notified by the Central Government in exercise of powers under Section 68(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015.Rule 5 of the Adoption Regulations provides that couples with two or more children shall only be considered for adoption of special needs children and hard to place children, unless they are relatives or step-children.In this regard, while giving the custody of X to the petitioner, her foster parent, the bench comprising Justice Saumitra Dayal Singh and Justice Manjive Shukla observed,“While the law could not prevent the petitioner from giving birth to another child, it has been relied to deprive the petitioner from bringing up another child as her own. To take away X from the petitioner is the easiest part in law but it is not possible for law to find another set of parents X may identify as its own. Therefore, law must yield to justice that otherwise commends that the child X must remain in the care of those it perceives to be its parents, especially the petitioner in whom it has found its mother.”Child (X) was handed to the petitioner in 2014 by a third person. Despite having four children of her own, petitioner took in X and there was no objection from the State authorities or by any other person till November, 2021. In November 2021, X was abducted by the same person who had given the child to the petitioner. At this stage, petitioner moved an application before the Child Welfare Committee, Fatehgarh, Farrukhabad and X was rescued.Thereafter, based on the X's counsellor report stating that the child wants to go back to her parents (petitioner), custody of X was given to the petitioner. Even though there was no complaint against the care being given by the petitioner to X, the District Probation Officer submitted a report to the District Magistrate, Agra stating that X was better off in the care of a State facility than the care of the petitioner. Based on the report of the District Probation Officer, X was moved from the care of the petitioner to the government facility in Agra.Petitioner approached the High Court against the order passed by the Child Welfare Committee, Fatehgarh, Farrukhabad withdrawing the custody of X from the petitioner and the order of the CWC rejecting petitioner's application for grant of foster care of X.Though certain individuals approached the Court claiming to be parents, the DNA tests came out to be negative. Consequently, they withdrew from proceedings. Since there was no other claim regarding parentage or custody of X, the Court exercising parens patriae jurisdiction, observed that“In ideal conditions, all children may grow up in the care and love of their biological parents. However, from times immemorial foster care and adoption are established practices in all human societies. Taking a child by way of adoption or by way of foster care is neither contrary to practices prevailing in societies nor it is a behavioral practice to be looked down upon. In fact it is consistent to goodness of human nature.”The Court observed that the counselling report clearly reflected the bond between the mother and X as a bond between a mother and child. The Court observed that X only knew the petitioner as her mother. It was held that no adverse report being available was enough to hand over the custody of X to the petitioner.The Court held that District Probation Officer mechanically and after recording vague observations had dismissed the application of the petitioner. The Court held that the District Probation Officer could not have taken away X's custody from the petitioner merely because she had four children.While granting the custody of X to the petitioner, the Court observed that“The litigation forced on X has unwittingly and cruelly destroyed the permissible deception that may otherwise have been practiced by not letting X know the fact of adoption till it would have grown up enough to deal with the psychological trauma that may otherwise arise from such knowledge. Ignorance would have been bliss for X. However, that umbrella is now destroyed and it stands exposed prematurely to hard realities of life, at a tender age of 9.”The Court observed that though the application for adoption filed by the petitioner be considered in accordance with law, the observations made by the Court would govern the peculiar facts of this case “as may not allow law to defeat the ends of justice that far outweigh the concerns of law.”Case citation: 2024 LiveLaw (AB) 84

'Law Must Yield To Justice': Allahabad High Court Permits Woman With 4 Biological Children To Adopt Child Despite Legal Bar

Upasna Agrawal

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