Step-Parent Not Permitted To Adopt Child Without Consent Of Biological Parent: Kerala High Court

Justice C.S. Dias thus observed that the substantive and statutory right of the biological parent over the custody of his child cannot be waived or relaxed by CARA, but such rights could only be determined by a competent Civil Court.

Court stated, “….it would have serious repercussions because in child custody cases, a biological parent can easily be denied custody by resorting to adoption without the consent of the biological parent. The power conferred on the first respondent under Regulation 63 can only be understood in the context of relaxing the procedural requirements prescribed under the Regulations and not for waiving substantive rights of the parties under the Act. Thus, as long as the biological parent does not give his consent to the adoption, the adoption by the step- parent cannot be permitted.”

Background Facts

In the facts of the case, the first petitioner(mother) and fifth respondent (father) are the child's biological parents. Following their divorce on mutual consent, permanent custody of the child was given to the mother, while father received the interim custody. After the mother's second marriage, the step father filed for adoption of the child.

The request was however declined by the Child Welfare Committee (CWC) due to objections raised by the biological father.

Thus, the mother and the step father approached the High Court seeking to quash the CWC order and seeking a direction to CARA to relax the adoption procedure, allowing the step father to adopt without biological father's consent.

Findings

The Court noted that CARA has formulated Adoption Regulations of 2022 under the powers conferred under Section 58 of the Juvenile Justice (Care and Protection of Children) Act.

Court noted that as per Regulation 4, child from an earlier marriage who is surrendered by biological parent for adoption by step-parent is eligible for adoption. It noted that Regulation 55 deals with step-parent adoption.

The Court stated that as per the Regulations, the child has to be surrendered by the biological parent by jointly executing a consent letter with the step-parent which has to be attested by witnesses and certified by the CWC. The Court further noted that upon certification of the consent letter by CWC, CARA has to issue a pre-approval letter certifying that the consent letter of biological parent is obtained. The Court thus stated that a joint application for adoption can only be filed before the District Magistrate after obtaining the pre-approval letter.

In the facts herein, the Court noted that the biological father had not given consent for adoption, but rather had opposed the step-parent adoption.

On interpreting the adoption regulations, the Court concluded that there was no illegality in the order issued by CWC rejecting the adoption request. It said, “Analysing the scheme of the statute, it is imperative that the biological parent surrenders the child..”

The Court stated that one of the adoption requirements under the CARA is that the child should be declared as an orphan, abandoned or surrendered child. It stated that CARA cannot relax this substantive requirement.

This is because the Court noted that once an adoption order is passed, the child is irrevocably and permanently severed from his biological parent and becomes the lawful child of his adoptive parent which carries significant legal implications. The Court also relied upon Regulation 63 to explain the effects of adoption.

Court added, “once an adoption order is passed, the child is irrevocably and permanently severed from his biological parent and becomes the lawful child of his adoptive parent. Adoption carries significant legal implications, including the inheritance and succession rights of the parent and the child. The moment the adoption order is passed, the child's ties with his family of birth is displaced… The substantive and intrinsic statutory right of the fifth respondent (step-father)to have custody of his child is not a matter that can be relaxed and waived by the first respondent (CARA) under Regulation 63; instead, it is a matter which can only be decided by a civil court.”

As such, the Court dismissed the writ petition.

Counsel for Petitioners: Advocates A.Parvathi Menon, P.Sanjay, P.K.Muralykrishnan, Biju Meenattoor, Paul Varghese (Pallath), Kiran Narayanan, Rahul Raj P., Muhammed Bilal.V.A, Meera R. Menon

Counsel for Respondents: Government Pleader Vidya Kuriakose, Deputy Solicitor General of India T C Krishna, Advocate Rajesh Sivaramankutty

Case Title: Ammu Ajit v Central Adoption Resource Agency

Case No: WP(C) NO. 4509 OF 2025

Citation: 2025 LiveLaw (Ker) 158

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