'Can't Be Left To Oppressor's Mercy': P&H High Court Allows Minor Rape Victim To Give Child In Adoption, Says Consent Of Biological Father Inconsequential

Observing that mother being a "natural guardian of the illegitimate minor girl child cannot be left to the mercy of her oppressor," the Punjab & Haryana High Court has allowed the then 13 years old rape victim to give the child in adoption without the concurrence from the biological father.The dispute occurred when the registrar refused to register the adoption deed of the child stating that as per the Hindu Adoptions and Maintenance Act, 1956, a mother/natural guardian can give the child in adoption only after obtaining consent of the father.The child was born as an outcome of the rape and biological father was convicted and sentenced to 20 years of imprisonment. Justice Vinod S. Bhardwaj said, "the Hindu Minority and Guardianship Act, 1956 defines a 'natural guardian' and Section 6 thereof recognizes that in respect of a Hindu minor i.e. an illegitimate unmarried girl, the mother would be the natural guardian. Section 8 thereof vests power in a natural guardian to do all acts that are necessary, reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate.""Law would not intend to turn the minor to her tormentor to protect and save her left over dignity, honour and pride and plead his consent for putting her life on correctional and restitutive path. Such an interpretation as would give an over-riding effect to Section 9(2) of the HAMA ignoring the statutory mandate to cater to circumstances surrounding the case would not only violate the statutory scheme of other provision but would also be hit by Article 21 of the Constitution of India," added the Court.The Court further clarified that the mother of the minor is the natural guardian of the said child despite she herself being a minor. The petitioners No.1 and 2 (parents of the mother) are the natural guardians of petitioner No. 3 (mother) Section 8 vests power in a guardian to do all such acts which are necessary and reasonable for the care and protection of the minor.Perusing Section 6 and 9 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA), the Court said that the "law does recognize an independent right of the guardian to give a child in adoption and in a case of guardian, the consent of biological father would become inconsequential since an expression 'or' has been used in The Hindu Adoptions and Maintenance Act, 1956."Hence, each person has its own substantive right to do such acts- to the exclusion of others. The only check on the guardians act of giving a child in adoption is under Section 9(4) of The Hindu Adoptions and Maintenance Act, 1956, the Court added further.These observations were made in response to the plea seeking the quashing of the order by which the Sub-Registrar of Documents rejected the adoption for lack of consent from the biological father of the child.The Court considered the question as to whether the minor petitioner, who is a mother, and is a natural guardian under Section 6(b) of Hindu Minority and Guardianship Act, 1956 (HMGA) would be eligible to give her illegitimate child in adoption or not? To answer the question the Court said, since both the minor mother and her minor child are the juveniles/children in need of care and protection. The petitioner No.3- minor mother, having been sexually abused, would fall in Clause 2 (14) (viii) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) and the minor illegitimate child would fall in the interplay of Clause (vi) and (vii) of Section 2(14) read with definition of 'abandoned child' under Section 2(1) of the JJ Act for whom no one is willing to take care and also considering that the 'natural guardian' (minor) herself is unfit and incapacitated to take care and protect or provide for the safety or well being of the minor illegitimate girl child.While recognizing that Section 6(b) of the HMGA is not subject to Section 6(a) thereof and Section 9(1) of the HAMA recognizes the right of the 'guardian' to give a child in adoption subject to Section 9(4) thereof and the said section is also not subject to Section 9(2) of HAMA, the Court added.Justice Bhardwaj also highlighted that since even the mother in the present case happens to be a minor and a child in need of care and protection, the Court finds strength also in the JJ Act. Section 38 (3) of the JJ Act is the only provision that considers the unwanted child of a victim of sexual assault to be declared as free for adoption by the Committee notwithstanding anything contained in any other law, for the time being in force, the Court added.The bench further said that Section 38(3) of the JJ Act has been given an "overriding power under the statutory scheme in relation to giving an unwanted child of a victim of sexual assault in adoption."Adding that the rearing of an illegitimate child is a constant reminder of the trauma and may not be good for the social and psychological well-being of the minor mother as well as the child, the Court said,...

'Can't Be Left To Oppressor's Mercy': P&H High Court Allows Minor Rape Victim To Give Child In Adoption, Says Consent Of Biological Father Inconsequential

Aiman J. Chishti

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