Consent of rape-accused father inconsequential & immaterial in child adoption: Karnataka HC

Bengaluru: The consent of the rape-accused biological father of the child is both inconsequential and immaterial in the adoption process, the High Court of Karnataka has noted in a recent judgement.

Justice Hemant Chandanagoudar said stated that there is no necessity to obtain a separate declaration under Section 38 of the Juvenile Justice (JJ) Act of the rape-accused biological father when the consent was already provided by the minor victim mother and her guardian. 

The petition was filed by the rape victim, her mother and a couple desirous of adopting her female child. 

The petitioners had challenged the endorsement issued by the sub-registrar, Yelahanka, rejecting the online application for the registration of the adoption deed. The application was rejected on the grounds that it was incomplete as the biological father of the child to be adopted was not mentioned as an executing party. 

The child was born to the rape victim, who was 16 years old at the time of incident. The biological father, booked for offences under sections 4-6 of the Protection of Children from Sexual Offences (Pocso) Act and IPC sections 376, 506, and 34, is in judicial custody. 

Justice Chandanagoudar noted that the adoption of the subject child by Muslims, as is in the case at hand, is solely regulated by the JJ Act and the rules and regulations framed thereunder. 

“Since the biological parents giving the child in adoption (rape victim and her mother) and the prospective adoptive parents (Petitioners No. 3 and 4) are joint petitioners in this case and are known to the respondent-state, the object behind obtaining a report from the Child Welfare Committee (CWC) under Section 38 of the JJ Act, 2015, i.e., identifying the biological parents and ensuring their willingness, is satisfied. Thus, there is no necessity for obtaining a separate declaration under Section 38 of the Act, 2015,” the court said. 

The court further observed that the JJ Act is a special enactment intended to fulfill the Directive Principles of State Policy, particularly Article 39(f) of the Constitution, which emphasises the opportunity for children to develop in a healthy manner and in conditions of freedom and dignity. 

“…when the natural guardians of a child are incapable of providing a loving, safe, and nurturing environment, the subject adoptee child, for all practical purposes, falls within the definition of an “orphan.” 

Failure to give such a child in adoption would deprive them of their right to live with dignity, as guaranteed under Article 21 of the Constitution. Hence, adoption in such cases is not only a statutory right but also a moral obligation to ensure the overall welfare and development of the child,” the court said. 

The adoptive parents and the sub-registrar, Yelahanka, have been directed to report forthwith the adoption of the girl child, upon registration of the Adoption Deed dated November 11, 2024, to the jurisdictional district magistrate, who then is required to forward the report to the Central Adoption Resource Authority.