(2022) 1 HCC (Kar) 20[1]
FACTS
In the case above, the Hindu biological parents and Muslim adoptive parents entered in to an
unregistered agreement stating that once the child is born, the adoptive parents would be raising the
child as per their agreement, although the agreement specified no money as consideration between
the parties. The child was born after five days of the agreement and thereupon the biological parents
gave the child to adoptive ones, who raised her for two years. A complain was later filed alleging
that the biological parents illegally sold the child to adoptive parents which was filed by Legal-cum-
Probation Officer, District Child Protection Unit, Udupi. On appeal, the Karnataka High Court
upheld this decision, ruling that agreements for unborn children are “unknown to law” and violate
the child’s rights under Article 21 of the Constitution. The Court directed the biological parents to
approach the Child Welfare Committee if they wished to regain custody, ensuring the child’s safety
and preventing any potential sale. The adoptive parents appealed, arguing that:The agreement was
made before the child’s birth, proving that there was no sale of the child. The biological parents did
not object to the adoption, and therefore, the adoption should be recognised. The court erred in
dismissing the petition solely on religious grounds and should have considered the welfare of the
child.
This case raises crucial issues concerning private adoption agreements, religious differences in
adoption laws, and the legal recognition of an unborn child’s rights. The judgment has significant
implications for child adoption laws in India and highlights the importance of state intervention in
child welfare. [2]
ISSUES
I. Is the adoption of an unborn child legally valid?
II. Whether entering into a private agreement for adoption disregarded the child’s
constitutional and legal protections?
III. Whether cross-religious adoption without statutory compliance aligns with India’s legal
framework for child welfare?
RULES
A. Hindu Adoptions and Maintenance Act (HAMA), 1956[3]
• Section 6, Hindu Adoptions and Maintenance Act(HAMA),1956 2
• Section 9, Hindu Adoptions and Maintenance Act(HAMA),1956
• Section 11, Hindu Adoptions and Maintenance Act(HAMA),1956
B. Juvenile Justice (Care and Protection of Children) Act, 2015[4]
• Section 35, Juvenile Justice (Care and Protection of Children) Act, 2015 3
• Section 80, Juvenile Justice (Care and Protection of Children) Act, 2015
C. Constitutional Provisions[5]
• Article 21 (Right to Life and Dignity), Constitution Of India
CONTENTIONS
– Appellants’ Arguments
The adoptive parents argued that the agreement reflected mutual consent and lacked financial exchange which showcases their truest intention adopting and giving the child. They asserted that the Trial Court solely based on religious differences has erred in dismissing their petition, as conversion to another faith should not disqualify custody. They further emphasized their two-year custodial bond with the child, which would severely impact on the child by such abrupt separation
highlighting psychological harm to child.
– Respondents’ Counterarguments
The State contended that the agreement was void ab initio (from inception) under Mohammedan
Law, which does not recognize adoption. They stressed that unborn children lack legal
personhood for adoption purposes and highlighted procedural violations under the Juvenile
Justice Act. The respondents also underscored the State’s duty to prioritize the child’s welfare
over parental claims.
COURTS’S ANALYSIS
As per the dissection provided by the Court over this concerned case, upheld the agreement to be legally unenforceable as is against the law, rejecting the the sanctity of the truest nature of giving and taking of child for its own welfare. It is further undisputed that the adoptive parents and biological parents both belong to different religions i.e.Muslim and Hindu respectively which negated the basic requisites of adoptions. As per Section 10 which talks about capacity of being adopted, which explicitly has highlighted that the child must be Hindu and whereas 7 to 9 sections defines as two who can give and take in adoption. But these are governed by the Hindu Adoption and Maintenance act, 1956 not under Muslim law, which doesn’t recognises adoption as a legal
process. But it can a relieved as if governed by JJ act, as highlighted in case of J v. Cara[6] case, which allowed such adoption siding with the welfare of child. The Court ruled that the arrangement
Jose Solomon & Anr. v. Central Adoption Resource Authority & Anr.,[7], Delhi High Court (July 26, 2021) was unenforceable since Indian law does not recognise the adoption of unborn children. While the Hindu Adoption Act mandates rigorous adherence to certain procedures (such as registration documents and parental agreement), Mohammedan law expressly forbids adoption. “Such agreements are unknown to law,” the Bench said, noting that the pact was void due to its unregistered status and prenatal time. According to a progressive reading, the Court held that life begins at the foetal stage and recognised foetal rights under Article 21 . It guarantees the Right to Life and Personal Liberty, stating: “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
In the context of this case, Article 21 applies in two critical ways:
1. The child’s right to life, dignity, and well-being – The court ruled that the private adoption agreement violated the child’s right to a dignified existence, treating the child as an object of a contract rather than a human with independent rights.
2. The due process requirement in adoption – Adoption must follow a legally established procedure, ensuring child welfare through the Juvenile Justice Act and the Child Welfare Committee (CWC). The court found that the private agreement bypassed legal safeguards, compromising the child’s protection under the law. It decided that because the biological and adoptive parents commodified the kid without any legal protections, the agreement infringed upon the child’s right to identity and dignity. “The unborn has life from the stage it transforms into a foetus,” the Bench noted. The Court further rejected the defence of poverty for unofficial adoption, pointing out that government programs (such as financial aid, education, and nourishment) give low-income families other options. In accordance with Section 35 of the Juvenile Justice Act, 2015 , which requires turning over children to approved authorities for moral adoptions, it denounced the parties for eschewing legal surrender procedures.
The High Court ordered the Child Welfare Committee (CWC) to decide custody, upholding the Trial Court’s dismissal. It required CWC control to guarantee the welfare of the children and ordered police monitoring to stop child trafficking. Important ramifications include:
Pre-Birth Agreements: Legally void across all religions, emphasizing compliance with statutory adoption procedures.
Cross-Religious Adoption: Requires adherence to both communities’ personal laws and the secular Juvenile Justice Act.
Fetal Rights: Expanded Article 21 protections to unborn children, setting a precedent for future cases involving fetal dignity.
State Accountability: Reinforced the State’s role in safeguarding children through welfare schemes and lawful surrender mechanisms.
CRITICAL ANALYSIS
The Karnataka High Court’s judgment regarding the adoption of an unborn child is likely to have significant implications for both society and future legal cases. The ruling not only clarifies the legal framework surrounding adoption but also reinforces the importance of safeguarding the rights and welfare of children, especially in cases involving adoption outside the prescribed legal process.
First, this judgment underscores the importance of adhering to established legal procedures when it comes to adoption. It sends a clear message that adoption agreements made outside the legal framework are invalid, particularly when they involve an unborn child. By emphasizing that such agreements are not recognized by law, the court has set a precedent that strengthens the legal process around adoption, ensuring that all adoptions go through the proper legal channels. This will likely discourage individuals or couples from attempting to circumvent the law with informal or private adoption agreements. It also highlights the need for all parties involved in adoption— whether biological or adoptive parents to respect and follow the laws designed to protect the child’s
welfare.
The ruling also reinforces the concept of child welfare, which is central to the Indian legal system, especially under the provisions of Article 21 of the Constitution and the Juvenile Justice Act. The court stressed that the best interests of the child should always be paramount. This will likely influence future cases involving adoption, ensuring that courts scrutinize agreements carefully and prioritize legal procedures that protect children’s rights. The case underscores the need for proper legal mechanisms, such as the Child Welfare Committee, to be involved in any adoption process to ensure the child’s safety and well-being. This may lead to more rigorous enforcement of child protection laws in future adoption cases. Furthermore, the judgment highlights the importance of utilizing government programs and legal avenues for child welfare, especially in cases of poverty or financial hardship. The court pointed out that the biological parents had alternatives, such as government schemes or surrendering the child through legal means, which would have ensured the child’s welfare. This aspect of the judgment may lead to greater awareness in society regarding the existence of legal and governmental solutions for child welfare. It may also encourage parents facing financial difficulties to explore these avenues rather than resorting to informal, potentially illegal arrangements. For future cases, this judgment sets a precedent that clarifies the legal parameters within which adoption must occur. Courts will now be more cautious when dealing with adoption agreements that do not follow legal procedures, especially those involving unborn children or informal agreements between parties. This will help prevent the exploitation of vulnerable children and ensure that their rights are safeguarded.[8]
On a broader societal level, this ruling emphasizes the importance of child protection, legality, and transparency in the adoption process. It educates the public about the legal frameworks in place to protect children and promotes a more informed approach to adoption. The case may also encourage greater dialogue about the intersection of cultural, religious, and legal practices in adoption, ensuring that the best interests of the child are always prioritized over any personal or familial considerations.
In conclusion, the judgment will likely have a long-term impact by promoting legal adoption practices, reinforcing child welfare protections, and raising awareness about the legal and ethical standards that must be followed in adoption cases. It sets a clear precedent that will influence how future adoption-related cases are handled by courts, ensuring a more structured and child-focused approach in such matters.
CONCLUSION
The Karnataka High Court’s decision in this case underscores the legal complexities and ethical dilemmas surrounding adoption agreements for unborn children. By declaring such agreements “unknown to law,” the court reinforced the principle that adoption must adhere strictly to statutory frameworks, ensuring the welfare and rights of the child. Critically, the judgment highlights the tension between personal laws and secular legal systems, particularly in cross-religious adoptions.
The court’s emphasis on the child’s constitutional rights under Article 21 of the Constitution sets a significant precedent, recognizing fetal rights and dignity from conception. However, the ruling also raises questions about the practicality of legal adoption processes for impoverished families. While the court suggested alternatives such as government schemes and educational institutions, these options may not fully address the immediate needs of families in crisis. Furthermore, the court’s stance on Mohammedan Law’s prohibition of adoption underscores the need for legal reform to accommodate diverse religious and cultural contexts within India’s pluralistic society. While the court’s judgement was legally correct, but it did not consider alternative legal remedies such as granting temporary guardianship under the Guardians and Wards Act, 1890. The court failed to consider the emotional well-being of the child, who had already spent two years with the adoptive parents. A psychological evaluation of the child’s best interests should have been conducted. Ultimately, this case serves as a call for more nuanced legal frameworks that balance the rights of all parties involved biological parents, adoptive parents, and most importantly, the child while ensuring that adoption processes prioritize the child’s welfare and dignity. The judgment
reinforces the importance of legal compliance and ethical considerations in adoption, emphasizing
that informal agreements, even if well-intentioned, cannot replace the safeguards provided by
statutory law.
INFERENCE & RATIONALE
The Karnataka High Court’s ruling on the adoption of an unborn child has opened up several important areas for further discussion, particularly in relation to legal practices, child welfare, and societal issues surrounding adoption. The judgment not only clarifies the legal status of adoption but also raises questions about the broader framework for child protection and adoption laws in India.
One of the key dimensions of the case is its potential to influence Indian adoption laws. The ruling stresses that informal adoption agreements, especially those concerning unborn children, cannot be recognized under current law. This decision serves as a reminder that adoption must go through proper legal channels to ensure the child’s welfare. It may prompt further scrutiny of adoption laws, particularly with regard to interfaith adoptions, where religious and legal systems may differ. The judgment could encourage lawmakers to create more inclusive adoption frameworks that respect both the child’s best interests and the diverse cultural contexts in which adoptions take place. Another significant dimension is the emphasis on child welfare and the role of government agencies. The court highlighted that the biological parents should have approached the Child Welfare Committee (CWC) if they wanted to give the child up for adoption. This decision could lead to a closer look at how CWCs operate and their ability to handle complex adoption cases. It might prompt reforms to ensure that CWCs are better equipped to assess adoption cases thoroughly, especially those involving vulnerable children. Furthermore, the case underscores the importance of government programs and legal avenues to help families in need, encouraging a shift towards utilizing these resources rather than resorting to informal, potentially harmful adoption practices. The ruling also raises broader social issues about adoption in India, especially concerning families in poverty. The court pointed out that the biological parents could have used government schemes instead of entering into an informal adoption agreement. This aspect of the judgment may spark conversations about how society addresses the welfare of children from economically disadvantaged backgrounds. There may be calls for better support for families facing financial
hardship, so they do not feel forced to give up their children without legal protections in place. Public awareness campaigns could emerge, aiming to educate people about the legal routes for adoption and the resources available for parents in difficult situations. The judgment has also set a legal precedent that could impact future adoption cases. It clarifies that any informal agreements made without following legal procedures are invalid, particularly when the child is still unborn. Future courts will likely use this case to ensure that adoptions are done through proper channels, protecting both the child and the parties involved. The case also raises questions about the legal status of unborn child adoptions, an area that is not clearly addressed by current laws. This could lead to more defined legal processes for such cases in the future.
Additionally, the ruling could influence international adoption cases. India’s adoption laws are
aligned with international conventions like the Hague Convention on Adoption, and the judgment may encourage stricter enforcement of these regulations. This could impact the process by which children are adopted by foreign nationals, ensuring that the child’s welfare is protected even in cross-border scenarios.
In conclusion, the Karnataka High Court’s judgment is not just about a single case but could have far-reaching effects on the way adoption laws are understood and applied in India. It raises important questions about the intersection of law, child welfare, and societal practices. Future legal developments and societal discussions will likely build on this case, ensuring that adoption processes are more inclusive, child-centered, and legally robust. The case has the potential to prompt reforms in both the legal framework and social attitudes toward adoption in India, ultimately ensuring better protections for children.
Submitted by:
Pragya Singh
Third year, Symbiosis Law School
BATCH – 2023-28
B.A LL. B
[1] Shashitha v. State of Karnataka, (2022) 1 HCC (Kar) 20 (India).
[2] Jose Solomon v. Cent. Adoption Res. Auth., W.P. (C) 3187/2021 (Del. HC July 26, 2021)
[3] Hindu Adoptions and Maintenance Act, No. 78 of 1956, §§ 6, 9, 11 (India).
[4] Juvenile Justice (Care & Protection of Children) Act, No. 2 of 2016, §§ 35, 80 (India).
[5] India Const. art. 21.
[6] J. v. Cara, W.P. (C) /_ (Del. HC 334).
[7] Jose Solomon v. Cent. Adoption Res. Auth., W.P. (C) 3187/2021 (Del. HC July 26, 2021).
[8] Guardians & Wards Act, No. 8 of 1890 (India).