Kerala High Court: In a writ petition concerning the adoption of a child by a step-parent, C.S. Dias, J. held that as long as the biological parent does not consent to the adoption, the adoption by the step-parent cannot be permitted. Consequently, the petitioners’ request to direct CARA to relax the requirement of obtaining consent from the biological father was denied
Background
The marriage between the petitioner 1 (mother) and respondent 5 (Biological father) was dissolved on mutual consent, and all the cases between them were dismissed. As per the terms of the compromise, the permanent custody of the child was given to the mother, and interim custody of the child was given to the father. Later, disputes again arose between the parties regarding the child’s custody, which was settled by the Supreme Court. Thereafter, petitioner 1 got married to petitioner 2. The child shares a close bond with the petitioner 2 (Stepfather). Accordingly, the petitioners registered their names with the Central Adoption Resource Agency (‘CARA’) and the State Adoption Resource Agency, for step-parent adoption of the child. They also applied to the Child Welfare Committee (‘CWC’) seeking consent for the step parent adoption. CWC declined the stepfather’s request for adoption due to the objection raised by the biological father, directed the petitioners to approach the Family Court and get the biological father’s right to have the custody of the child revoked.
Analysis and Decision
After referring to Section 56 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘Act’), and Regulation 2 (26) , 4, 7(22), 55 of the Adoption Regulations, 2022 (‘Regulations’), the Court noted that if a step-parent has to adopt his step-child, the child has to be surrendered by the biological parent by jointly executing a consent letter with the step-parent in the form specified in Schedule XX of the Regulations. Furthermore, the consent form has to be attested by witnesses and then certified by the three members of the CWC. Therefore, as per the scheme of the Act and the Regulations, the CWC’s jurisdiction in a step-parent adoption is limited to the certification of the consent letter and nothing more.
The Court highlighted that upon the certification of the consent letter, the application has to be verified by the District Child Protection Unit and the State Adoption Resource Agency and then be referred to the Central Adoption Resource Authority, who in turn has to issue a pre-approval letter in the form mentioned in Schedule XXV, certifying that the biological parent’s consent has been obtained. Only after getting the pre-approval letter can the biological parent and the step-parent file a joint application before the District Magistrate.
The Court noted that, under Regulation 55 (3), if the right to have custody of the child is under litigation, the adoption process can be initiated only after the litigation is finalised.
In the case at hand, the Court noted that the biological father has been granted the child’s custodial rights and has neither given his consent for the adoption nor indicated his willingness; instead, he has expressly opposed the adoption.
The Court observed that CWC’s jurisdiction concerning a step-parent adoption is limited to certifying the joint consent letter of the biological parent and the step-parent. Under Regulation 55 (7), the competent authority to pass an adoption order is the District Magistrate, provided all the statutory prerequisites are fulfilled.
Thus, the Court concluded that given as the biological father has not signed the consent letter and has objected to the adoption, there is no illegality in order passed by CWC.
Concerning the petitioners contention that CARA has the power to relax any regulation under Regulation 63, the Court observed that as per Regulation 63 the respondent is only empowered to relax any Regulation and not the provisions of the Act. Further, the Court said that one of the foremost processes for adoption is to get the child declared as an orphan, abandoned or surrendered child as per the mandate under Section 56 of the Act. The said declaration is substantive in nature and not a procedural formality. CARA is not empowered to relax a substantive provision of the Act.
After taking note of Sections 2(2) and 63 of the Act, the Court emphasised that once an adoption order is passed, the child is irrevocably and permanently severed from his biological parent and becomes the lawful child of his adoptive parent. Adoption carries significant legal implications, including the inheritance and succession rights of the parent and the child. The moment the adoption order is passed, the child’s ties with his family of birth is displaced.
The Court added that given the consequences associated with adoption, particularly concerning the substantive rights of the biological parents and child, Regulation 55 (3) has been incorporated mandating that if there is any litigation regarding the custody rights of the child, the adoption process can be commenced only after the litigation is finalised.
The Court concluded that the biological father has the inherent right to custody of his child, a right that continues until the child reaches the age of majority or until the order is modified or revoked by a competent court. The Court emphasized that the substantive and intrinsic statutory right of a biological father to retain custody of his child cannot be waived or relaxed by the CARA under Regulation 63. This right can only be determined by a Civil Court. Allowing any other approach could have serious consequences, as it would enable a biological parent to be easily denied custody through adoption without their consent.
The Court remarked that “the power granted to CARA under Regulation 63 must be understood within the context of relaxing procedural requirements set forth by the Regulations, not as a means to waive substantive rights under the law”.
Thus, the Court held that as long as the biological parent does not consent to the adoption, the adoption by the step-parent cannot be permitted. Consequently, the petitioners’ request to direct CARA to relax the requirement of obtaining consent from the biological parent was denied.
[Ammu Ajit v Central Adoption Resource Agency, Writ Petition (C) No. 4509 of 2025, decided on 05-03-2025]
Advocates who appeared in this case :
For Petitioners: A.Parvathi Menon P.Sanjay P.K.MUralykrishnan Biju Meenattoor PAUL Varghese (Pallath) Kiran Narayanan Rahul Raj P. Muhammed Bilal.V.A Meera R. Menon
For Respondents: Rajesh Sivaramank, utty K.V.Antony, Vijina K, Isaac George, Arul Muralidharan, Government pleader Vidya Kuriakose
