10 Dec 2022 8:03 AM GMT
The Karnataka High Court has said that Mohammedan Law does not recognise adoption and thus an agreement entered into between a Hindu couple to give their unborn child in adoption to a Muslim couple is not allowed. A division bench of Justice B Veerappa and Justice K. S. Hemalekha dismissed a petition filed by the couples challenging the judgment of Additional Senior Civil Judge...
The Karnataka High Court has said that Mohammedan Law does not recognise adoption and thus an agreement entered into between a Hindu couple to give their unborn child in adoption to a Muslim couple is not allowed.
A division bench of Justice B Veerappa and Justice K. S. Hemalekha dismissed a petition filed by the couples challenging the judgment of Additional Senior Civil Judge dismissing the petition filed under Sections 7 to 10 and 25 of the Guardians and Wards Act, 1890, by them.
The bench said, "A careful perusal of the agreement entered into between the parties clearly depicts that appellant Nos.1 and 2 belong to Muslim community and appellant Nos.3 and 4 belong to Hindu community and thereby, the Mohammedan Law does not recognise adoption."
Appellant Nos.1 and 2 filed the petition before the trial Court under the provisions of Sections 7 to 10 and 25 of the G & W Act to grant permission to appoint them as the adoptive parents and guardians of a minor child.
Appellants Nos.3 and 4 are the biological parents of the said child. The child was born on 26-3-2020. Since appellant Nos.1 and 2 were childless and appellant Nos.3 and 4 were unable to look after the child due to poverty, appellant Nos.1 and 2 adopted the child. After adoption of the child, appellant Nos.1 and 2 looked after and raised the child for two years as their own daughter.
The respondent State through District Child Protection Unit lodged a complaint against appellant Nos.3 and 4 stating that they have illegally sold the child to appellant Nos.1 and 2. However, the only mistake committed by appellant Nos.3 and 4, biological parents, and appellant Nos.1 and 2, adoptive parents, is that due to lack of proper legal knowledge and guidance, the procedure was not complied with. Now, the child is in the custody of the respondents/ appellants 3 & 4. Therefore, appellant Nos.1 and 2 sought to be appointed as adoptive parents of the child. Biological parents filed a memo that they have no objection for the petition filed by adoptive parents.
The bench referred to the agreement entered between the couples and said,
As on the date of the agreement, the child was in the womb of appellant No.4 and the child was born on 26-3-2020, i.e. after five days of the agreement entered into between the parties. Thereby, both parties entered into agreement in respect of an "unborn child, which is unknown to law".
Further the bench noted that condition No.3 in the agreement is that the second party will not claim any money from the first party. Thereby, this clearly depicts that the child was given in adoption for money. It is also relevant to point out at this stage that on the basis of the complaint lodged by the 3rd respondent, Kota Police registered a case against the appellants and two others, namely Balakrishna and Reshma, under Sections 80, 81 and 87 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Later, it was transferred to Karkala Town Police Station, which filed a charge-sheet on 14-6-2022 before the Principal Civil Judge and Judicial Magistrate First Class, Karkala.
Expressing shock that an agreement was entered between the parties in respect of an "unborn child", the bench observed,
"It is well settled that 'an unborn child has a life of its own and rights of its own and the rights of the unborn are recognised by law. No doubt, only if the unborn can be treated as a person, the right to life of the unborn can be equated with the fundamental right of the mother guaranteed under Article 21 of the Constitution."
It added, "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. In other words, the right to life of an unborn shall also be considered as one falling within the scope of Article 21 of the Constitution of India'."
Following which it held,
"As on the date of agreement, i.e. on 21-3-2020, appellant No.4 was nine months pregnant and she delivered the child on 26-3-2020, i.e. after five days of the agreement, thereby the child has a every right to lead life with dignity and honour as contemplated under Article 21 of the Constitution of India."
The bench held,
"As on the date of agreement entered into between the parties, appellant No.4 was in verge of completing nine months of her pregnancy and thereby, the appellants, both adoptive parents and biological parents, have violated the rights of the child guaranteed under the provisions of Article 21 of the Constitution of India."
Upholding the order of the trial court the bench opined, "If really appellant Nos.3 and 4, biological parents, came forward 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 by sending the child to Government Educational institutions and now, the Government has introduced various schemes for their day-to-day essential commodities, thereby the contention of the learned counsel for appellants that appellant Nos.3 and 4 entered into agreement for adoption of their child to appellant Nos.1 and 2 due to poverty cannot be accepted."
It added "The Government has introduced many schemes to overcome, or to streamline, poverty. If they have self-confidence and respect, they can lead a family by taking a loan from Banks and instead of that, appellant Nos.3 and 4 have sold the child in the name of adoption, which cannot be tolerated."
Reference was also made to Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which provides for voluntary surrender of the child by the parents or guardian.
The court dismissed the appeal and said "Appellant Nos.3 and 4, biological parents, to approach the Child Welfare Committee, if they really want their child back and it is for the Child Welfare Committee to take appropriate steps and pass orders in accordance with law."
Further, "If the Child Welfare Committee comes to the conclusion that after considering all the pros and cons in handing over the child to appellant Nos.3 and 4, biological parents, then the jurisdictional Police is directed to monitor appellant Nos.3 and 4 and so that the child is not sold to anyone and ensure that A3 and A4 shall take care of the paramount interest of the child."
Case Title: Shahista & Others v. The State.
Case No: MISCELLANEOUS FIRST APPEAL NO.4617 OF 2022
Citation: 2022 LiveLaw (Kar) 509
Date of Order: 30-11-2022
Appearance: Advocate Haleema Ameen for appellants.
AGA Vijaykumar A Patil a/w Kiran Kumar HCGP for respondents.
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