BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03.10.2024 CORAM THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR W.P.(MD)No.23102 of 2024 and W.M.P.(MD)No.19583 of 2024 G.Sangeetha ... Petitioner Vs.

The Sub Registrar, Joint-2 Sub Registration Office, Palani, Dindigul District. ... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the records of the Respondent pertaining to the impugned order made in Refusal Number. RFL/Joint-2 Sub Registrar, Palani/87/2024 dated 04.09.2024 on the file of the respondent and quash the same as illegal and arbitrary and consequently direct the respondent to register the petitioner adoption deed dated 03.09.2024 within the time limit that may be stipulated by this Court.

For Petitioner : Mr.A.D.Ganeshamoorthi For Respondent : Mr.C.Satheesh Government Advocate

O R D E R

This writ petition has been filed challenging the order refusing to register the adoption deed presented by the petitioner.

2.The case of the petitioner is that she married one Sathish on 02.04.2017 and a male child was born on 01.12.2018. Thereafter, due to the matrimonial dispute, the husband of the petitioner filed a divorce petition and the same is pending. Thereafter, she developed relationship with one Sivakumar. Due to that relationship, one female child was born on 19.03.2024. After that the said Sivakumar absconded, till today and his whereabouts is not known. As the petitioner is not in a position to take care of the child, she decided to give the child on adoption to one Sakthivel & Annakodi. In this regard, an adoption deed was also executed and presented for registration. However, the same was refused to be registered on the ground that the father of the child has not signed in the adoption deed.

3.Heard the learned counsel appearing on either side and perused the materials placed on record.

4.The child is born to the petitioner in an illegal relationship with one Sivakumar. It is the specific stand of the petitioner that the said Sivakumar is absconding and his whereabouts is not known. The child sought to be given in adoption is now six months old. The person, who takes the child in adoption, also does not have any other female child born to them as on today, as per the affidavit of the petitioner.

5.As far as the illegitimate child is concerned, as per Section 6 of the Hindu Minority and Guardianship Act, the mother is the legal guardian. As far as the adoption is concerned, it is governed under Chapter II of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act'). Section 9 of the Act makes it very clear that the father or mother or the guardian of a child shall have the capacity to give the child in adoption. Section 9(2) of the Act makes it very clear that the father or the mother, if alive, shall have equal right to give a son or daughter in adoption. The only restriction is 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.

6.In view of the above legal position, the question of obtaining consent in this case does not arise at all. The child is not born in a lawful marriage and it was born to the petitioner through the illegal intimacy with one Sivakumar. Now, he is absconded and his whereabouts is not known. Hence, it has to be considered that the said Sivakumar, totally abandoned the petitioner and the child. In such situation, the petitioner /mother being the guardian of the illegitimate child, has every right to give the child in adoption. Further, the other parameters are also satisfied that the adoptive parents do not have any other female child as per the affidavit as on the date of adoption and they are capable of taking the child in adoption.

7.Further, it is to be noted that