The judgment established the principle that an agreement for adoption of an unborn child is invalid and not permissible under the principles of Mohammedan Law. It emphasized the welfare of the child and the rights of the unborn, highlighting the importance of considering the child's welfare in such cases.

JUDGMENT :

B. VEERAPPA, J.

The biological parents, i.e. appellant Nos.3 and 4 and alleged adoptive parents, i.e. appellant Nos.1 and 2 entered into unregistered agreement of an 'unborn child' in the form of adoption, jointly filed the present appeal against the judgment and decree dated 31-5-2022 passed in G & W.C. No.9 of 2021 on the file of the Additional Senior Civil Judge, Udupi, dismissing the petition filed under Sections 7 to 10 and 25 of the Guardians and Wards Act, 1890 (for short, 'the Act').

I. Facts of the case

2. 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, by name Inshu. 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 have looked after raised the child for two years as their own daughter with love and affection. The respondent-State represented by Legal-cum-Probation Officer, District Child Protection Unit, Udupi, 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 are seeking to appoint them as adoptive parents of the child.

3. The order-sheet of the trial Court dated 25-11-2021 depicts that appellant Nos.3 and 4, biological parents, came up with their vakalatnama and also filed memo to the effect that they have no objection for the petition filed by appellant Nos.1 and 2, adoptive parents.

4. In order to prove the case of appellant Nos.1 and 2, appellant No.1 examined herself as P.W.1 and marked four documents as per Ex.P.1 to Ex.P.4(a). No evidence was adduced on behalf of appellant Nos.3 and 4, who are respondent Nos.1 and 2 before the trial Court.

5. Learned Judge of the trial Court upon careful perusal of the pleadings has framed the following issue:

"Whether the petitioners are entitled for permission to appoint them as adoptive parents and guardian of the person of minor Inshu as contemplated under Sections 7 to 10 and 25 of the Guardians and Wards Act, 1890, as prayed for them in their petition?"

6. After considering the oral and documentary evidence on record, the learned trial Judge, by judgment and decree dated 31-5-2022 dismissed the petition. Hence, the present appeal is filed.

7. We have heard Smt. Haleema Ameen, learned counsel for the appellants, Sri Vijayakumar A. Patil, learned Additional Government Advocate, along with Sri Kiran Kumar, learned High Court Government Pleader, for the respondent-State.

8. On 23-11-2022, this Court requested Sri Vijayakumar A. Patil, learned Additional Government Advocate, along with Sri Kiran Kumar, learned High Court Government Pleader, to assist the Court with reference to the Rules made by the State Government under Section 35 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

II. Arguments advanced by the learned counsel for the appellants

9. Learned counsel for the appellants has contended that the impugned judgment and decree passed by the trial Court dismissing the petition filed by appellant Nos.1 and 2 to appoint them as adoptive parents and guardians is erroneous and the same cannot be sustained and is liable to be set aside. She has further contended that the trial Court failed in appreciating the sanctity of the fact that the adoptive parents of the child and the biological parents had entered into an agreement with res