Expressing shock over an ‘agreement for adoption’ entered into by two couples with respect to an unborn child, the High Court of Karnataka said that such an ‘agreement is unknown to law’ while stating that this is a case of ‘adoption for money’.
The court held that the ‘agreement’ is invalid even under the principles of Mohammedan law, which does not recognise the adoption as the ‘agreement’ was between the biological parents, who belong to the Hindu community, and the adoptive parents, who belong to the Muslim community.
Observing that 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, the court said that the District Child Protection Unit (DCPU), Udupi was right in registering a criminal case against both the adoptive and the biological parents. The DCPU had alleged that the child was illegally exchanged for money.
A division bench comprising Justice B. Veerappa and Justice K.S. Hemalekha made these observations while dismissing an appeal jointly filed by both the adoptive parents (aged between 33 and 39 years) and the biological parents (aged between 32 and 36 years) of a two-year-and-nine-month-old girl. They had questioned the Udupi district court’s order dismissing the plea seeking custody of the child.
‘Right to life of an unborn child’
“It is well settled that an unborn child has a life of its own and rights of its own, and the rights of 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,” the bench said.
“True, an unborn is not a natural person, but it is well known that after six weeks, life is infused into the embryo, thus converting embryo into foetus, and once an embryo evolves into a foetus, the heartbeat starts. In other words, the unborn has life from the stage it transforms into foetus. 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,” observed the bench.
The agreement
The ‘agreement for adoption’ was signed on March 21, 2020 for the reason that the biological parents were unable to look after the child due to their poverty, and the child was born on March 26, 2020. The child was brought up by the adoptive parents, who are childless. The DCPU had lodged a complaint in 2021, and thereafter custody of the child was given to a child care unit.
The adoptive parents moved the district court seeking custody of the child and to declare them as guardians of the minor child; the biological parents had supported the plea. The district court rejected their plea.
The High Court bench said that the ‘agreement’ cannot be sustained as the Juvenile Justice (Care and Protection of Children) Act, 2015 has ample provisions to protect the welfare of a child when parents are financially not sound to take care of the child.
As the biological parents expressed their willingness to take back the child, the bench said it is for them to approach the Child Welfare Committee, which has to act as per the law on receiving such a request.
The bench also said that if the CWC decides to hand over the child back to the biological parents, the authorities will have to monitor their activities to ensure that the child is not sold to anyone else, and they take care of the child.
