Adoption Of Unborn Child Unknown To Law: Karnataka High Court

A division bench of the Karnataka High Court has said an agreement to adopt an unborn child is unknown to law.

The court dismissed an appeal filed by two couples who had entered an agreement in this matter.

"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," the division bench of Justice B Veerappa and Justice KS Hemalekha said in their recent judgement.

The biological parents and adoptive parents of the child had filed a petition before a trial court to declare the latter as the adoptive parents and guardians of the baby girl they had adopted.

While the biological parents are Hindus, the adoptive parents of the baby girl are Muslims.

Since appellant Muslim couple were childless and the biological parents were unable to look after the child due to poverty, they entered into the agreement. The agreement even states no money was exchanged for the adoption between the two parties.

The trial court dismissed their plea on grounds that the said agreement doesn't depict the welfare of the child. The two couples approached the High Court against the order of the lower court with an appeal.

The division bench upheld the order of the lower court. It said that if the biological parents were concerned about the child, they could have put it up for adoption legally.

"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," the HC said, dismissing the claim that the adoption was due to poverty.

The High Court said that "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. Considering the peculiar facts and circumstances of the case, the very agreement for adoption on 21- 3-2020 entered between the parties is an invalid document and the same is not permissible under the principles of Mohammedan Law." Since the agreement, the baby girl has been under the custody of the adoptive parents. The High Court said that it was for the biological parents to seek its custody.

"It is needless to observe that 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." The High Court also ordered the Child Welfare Committee to ensure that the child is not sold.

"If the Child Welfare Committee comes to the conclusion that after considering all the pros and cons in handing over the child to (the) biological parents, then the jurisdictional police is directed to monitor (them) so that the child is not sold to anyone and ensure that (they) shall take care of the paramount interest of the child," the High Court said.

The police in Udupi district had registered a complaint against both the couples and two others for allegedly selling the child.

The case was registered under the Juvenile Justice (Care and Protection of Children) Act. This case is still pending.

The High Court refrained from passing any opinion on this issue and said it was for the trial court to decide on the issue.

"We resist to observe anything at this stage that it is for the concerned court to proceed to a logical end in accordance with law."

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