IMPORTANT POINT
The mother of an illegitimate child has the exclusive right to give the child in adoption without the biological father's consent if he is absent, as per the provisions of the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956.

ORDER :

THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN

Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records in connection with the impugned Refusal Check Slip dated 13.01.2022 bearing refusal Number RFL/Pavvochatram/4/2022 issued by the third respondent and the impugned order dated 14.02.2022 in Na.ka.En.384/Aa1/2022 passed by the second respondent and quash the same and consequently direct the third respondent to register the adoption deed dated 12.01.2022.

“A” is a three year old male child. He was born on 28.11.2021 to “K” out of an illicit relationship. “K” was a minor when she conceived. “K” now wants to give the child in adoption. The petitioner and his wife have come forward to take “A” in adoption. Deed of adoption was executed and presented for registration. The registering authority refused registration on the ground that “K” had attained majority and remains unmarried at the time of giving adoption. Challenging the impugned refusal check slip, this writ petition has been filed.

2. The learned counsel appearing for the petitioner reiterated the contentions set out in the affidavit filed in support of this writ petition. He drew my attention to the relevant statutory provisions. Placing reliance on the decision reported in (2016) 10 SCC 767, the learned counsel argued that the impugned order has to be set aside and relief granted.

3. The learned Government Advocate on the other hand submitted that since the consent of the biological father is absent, the registering authority rightly refused registration. He admitted that the impugned refusal check slip does not reflect this reason. He called upon this Court to dismiss the writ petition.

4. I carefully considered the rival contentions and went through the materials on record. Section 2(1) of the Hindu Adoptions and Maintenance Act, 1956 deals with the application of the Act. Explanation (b) to the said provision reads that the Act will apply to any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged. In this case, “K” is a Hindu and she has brought up “A” as a Hindu. The petitioner is also a Hindu. His wife has given consent for taking the child in adoption. Therefore, the applicability of the personal laws of Hindus is beyond dispute.

5. Section 6 of the Hindu Adoptions and Maintenance Act, 1956 sets out the requisites of a valid adoption. One of the conditions is that the person giving in adoption has the capacity to do so. Section 9(1) and (2) of the Act read as follows :

“9.Persons capable of giving in adoption.-(1)No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

(2) Subject to the provisions of sub-section (4), the father or the mother, if alive, shall have equal right to give a son or daughter in adoption:

Provided that such right shall not be exercised by either of them save with the consent of the other unless one of them has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.]”

The first question that arises for consideration is whether the adoption is invalid since consent has not been obtained from the biological father of “A”.

The answer is found in Section 6 (b) of the Hindu Minority and Guardianship Act, 1956. It states that in the case of a Hindu minor illegitimate boy or an illegitimate unmarried girl, the mother is the natural guardian and after her, the father. The traditional view was that the mother is the lawful guardian of her illegitimate children. The High Court of Lahore held that where the father is known, he has preferential right (Prem Kaur v. Banarsi Das (AIR 1934 Lah 1003). But the High Court of Madras in more than one decision (