Agreement entered into between a Hindu couple to give their unborn child in adoption to a Muslim couple is not allowed: Karnataka High Court
The Karnataka High Court under Justice B Veerappa & Justice K.M. Hemalekha in Shahista & Others v. The State (Miscellaneous First Appeal No. 4617 of 2022) dismissed the plea of a Muslim Couple on adopting a Hindu child. It said that Mohammedan Law does not recognise adoption and thus an agreement entered into between a Hindu couple to give their unborn child in adoption to a Muslim couple is not allowed.
FACTS
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. 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.
FINDINGS
It was noted that “As on the date of the agreement, the child was in the womb of appellant No.4 and the child was born on 26- 3-2020, i.e. after five days of the agreement entered into between the parties. Thereby, both parties entered into agreement in respect of an “unborn child, which is unknown to law”. Condition No.3 in the agreement is that, the second party will not claim any money from the first party. Thereby, this clearly depicts that the child was given in adoption for money. It is also relevant to point out at this stage that on the basis of the complaint lodged by the 3 rd respondent, Kota Police registered a case against the appellants and two others, namely Balakrishna and Reshma, in Crime No.104 of 2021 for the offences punishable under Sections 80, 81 and 87 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Later, it was transferred to Karkala Town Police Station and the same was numbered as Crime No.72 of 2021 for the offences punishable under Sections 80 and 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and under Sections 465, 468 and 420 of the Indian Penal Code, 1860.
JUDGEMENT
Dismissing the appeal the bench said “A careful perusal of the agreement entered into between the parties clearly depicts that appellant Nos.1 and 2 belong to Muslim community and appellant Nos.3 and 4 belong to Hindu community and thereby, the Mohammedan Law does not recognise adoption. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of DAGADABAI (DEAD) BY LEGAL REPRESENTATIVES v. ABBAS ALIAS GULAB RUSTUM PINJARI reported in (2017) 13 SCC 705, wherein at paragraph No.20, it has held as under: “Fifth, the defendant having failed to prove that he was the adopted son of Rustum, had no option but to suffer the decree of dispossession from the suit land. It is a settled principle of Mohammedan Law that Mohammedan Law does not recognize adoption.
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JUDGEMENT REVIEWED BY VAISHNAVI SINGH