If the father is alive, he alone has the right to give the child for adoption.

I didn’t understand this part of this news report:

The court also said as per the provisions under the Hindu Adoption and Maintenance Act, if the father is alive, he alone has the right to give the child for adoption. [Mother alone can't give child for adoption]

Father alone has the right to give up the child for adoption? Isn’t both the parents’ consent necessary?

Does this also apply to cases where the mother is not married to the father? Or when the father has remarried without divorcing the mother; or when he is not living with (and/or supporting in any way) the mother and child?

A trial court has said that a mother cannot independently give her child up for adoption without the father’s consent as such an adoption is “nullity” in the eyes of law.

This is what I thought the law was :-

(7)

When a child is born to a married couple but is surrendered by one biological parent and the whereabouts of the other parent is not known, the child shall be treated as abandoned and further procedures shall be followed accordingly.

(8)

In case of a child born out of wedlock, only the mother herself can surrender the child and if she is a minor, the signature of an accompanying close relative will be obtained on the surrender document. [10. Procedure in case of Orphan and Abandoned Children.]

Note: The father in this case had alleged that the mother had given the daughter for adoption and was living with another man, hence he should not be made to pay interim maintenance. The court said the adoption was nullified without his consent, and the mother’s adulterous lifestyle was a matter of evidence.

About these ads

38 thoughts on “If the father is alive, he alone has the right to give the child for adoption.

  1. Yes this is true IHM. We have this problem at the orphanage. Many cases where father kills mother, goes to jail, we take in the child (always a girl). The father emerges from jail at some point and comes back to claim the now grown up child. Nothing we can do. Child has to go even if she herself want to stay on.

  2. In the States, just a few weeks ago the opposite side of this was big news. The wife gave the kid up for adoption while the husband was away on war duty. he didn’t know of this. He was stunned when he got back. The courts ruled in his favor but the family that adopted the kid is fighting it in court saying this was god’s gift to them and they won’t give it up (although they have 5 other kids). Either way it hurts bad when one partner does this just to hurt the other partner. The child invariably ends up being the biggest sufferer.

      • A child is never replaceable. However, Nish’s point is this child was not theirs (the adoptive families) in the first place.

        I believe both parents should have equal rights to the child, and neither parent should be able to surrender a child for adoption without the consent of the other parent too.

        • Adoption is more than a legal process. One can’t place a child and then say that the child wasn’t theirs (p.s.: children aren’t ours in any case, Khalil Gibran and all and the fact that people aren’t commodities)! The adoptive family followed the legal procedure, which messed up by not getting everything dotted and crossed.

          Just because one adult messes up, the child and the other family (and their 5 kids, by the way!) aren’t responsible. If it were me (I am an adoptive parent, so I have thought of this scenario), I would fight tooth and nail. This is more than a question of law alone with people involved.

          Adoption law looks at the interest of the child as central. Somehow, I think that a father fighting to not pay maintenance and a mother who made the choice to place can’t rank very high in what is good for the child!

        • But this was more kidnapping than adoption since they knowingly took the child without getting the father’s consent.

      • I get your point but remember that they had barely spent a month with this adopted kid and they are fully aware that the father was not involved in the adoption decision.

    • Replying to your comment above here – how does a system knowingly place a child without the biological father’s consent? That agency needs to be sued first. They had no business legally clearing a child without all approvals. The court that made is legal is required to ensure that both parents’ consent is obtained. How did that happen without the husband’s consent?! These were the checks to ensure that one partner does not encroach on the other’s rights.

      Now that THAT has happened, there is no right or wrong. Can see both sides and I would fight for my right if I were on either side. Regardless of how many other children I have, how many days it has been since the child was placed, et al. Adoptive parents jump through hoops, do paperwork to rival the bureaucracy, have to prove their ability to parent. When all this is done and a child is legally placed, hey, why should they not fight it out to parent a child they’ve bonded with?

  3. “If the father is alive, he alone has the right to give the child for adoption.”

    I don’t understand the word “alone” here. He alone? Did he create the child all by himself too? It reminds me of the dumb dialogues in movies that I wrote about, pompous husband asking wife to leave the kid behind coz she had come to his house ‘empty-handed’.
    There was a time when father’s name ALONE was on school certificates till some woke up to the fact that ‘a father ALONE did not a child make’.

    • My passport and official documents don’t have a middle name. I guess where my dad is from, we don’t do middle names. I went to school in Mumbai and it was compulsory there to have your father’s first name (or your husband’s first name) as your middle name, because this is what the local custom is. All my school certificates say My_name Dad’s_name Lastname, even thought that’s not my legal name.

      It hadn’t even occurred to my maharashtrian husband that not every community follows that naming convention. I have always found it extremely odd to user the husband’s name or the father’s name as a middle name. In any case, I never officially changed my name, so no husband’s name, no father’s name and the last name I was born with.

      • Carvaka, I had a difficult time fighting this in Maharashtra. It is still difficult for me to believe the insistence with which they wanted to add husband’s/father’s names to our names. One of the lines I used was to say this was not done this way “our side” – meaning it was against our culture/values to do add husband’s or father’s names – which is true, it was against our democratic, human, feminist, non-discriminatory, non-patriarchal-values.

        • Maharashtra and even Gujarat seem to insist on this. My friend had a tough time convincing them that she needed her passport in her maiden name without her husband’s name added to her own. They argued with her that she HAD to add her husband’s name to her’s or else she was “not going to get her passport”, it would be rejected! She got it of course, and in her original name.

      • @Carvaka, I was not talking of middle names. Earlier the school certificates only had the father’s name (as parent). Now they have both the father’s and mother’s names in the school leaving certificate. :)

  4. Don’t get this…out of wedlock…the mother alone has the right to decide to keep or give up the child but once married, the father ALONE!!??? Really? WTF! Sorry for the profanity IHM, but these idiotic statement drive me mad.

    So, even when everything is fine between the spouses, the husband and father can all of a sudden one day decide that he’s done being a dad and give the child up for adoption without the wife and mother having any say in the matter?!

  5. “If the father is alive, he alone has the right to give the child for adoption.”

    Is that the exact wording the judge used? Or is this a transliteration? Because it somehow does go with this remark, made in the same news article.

    “A trial court has said that a mother cannot independently give her child up for adoption without the father’s consent”

  6. The actual wording in the law goes like this:
    “Persons capable of giving in adoption- (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
    (2) Subject to the provisions of sub-section (3) and sub-section (4), the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother 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.”

    This is Manusmriti in action. Looks like someone has tried to insert the mother in there. We also know how this can be manipulated in daily life, given patriarchy’s dynamics.

  7. Father alone has the right to give up the child for adoption? Isn’t both the parents’ consent necessary?

    Both parents must consent to it, but the proceedings must be initiated by the husband, not the wife. Of course, that’s somewhat meaningless in practice, because if both parents have already consented to give up a child for adoption, it’s usually (but not always, for various reasons) immaterial whose name is used to initiate legal proceedings for the same.

    The fact remains, though, that a husband and wife do not have the same rights under the HAMA.

    Does this also apply to cases where the mother is not married to the father?

    Nope, the law applies exclusively to married women, seeking to give up the child for adoption under the Hindu Adoption and Maintenance Act, which in turn applies only to Hindu parents married under the Hindu Marriage Act.

    An unmarried adult Hindu mother always has exclusive and final rights to give up a child for adoption under the HAMA. BUT, those rights are dissolved the minute she gets married under the HMA.

    • Hit ‘submit’ too fast.

      I was saying that problems usually come up when the husband is, for some reason, considered legally incapable or loses his legal status of, being able to give consent (unsoundness of mind, ‘renouncing the world’, ceasing to be a Hindu and so on). Although the husband’s consent is no longer necessary, the wife CANNOT give away her own child for adoption as long as she is legally wedded to her husband. This is a whole can of worms, and the thing is, there really isn’t that much clarity on what happens in such a situation. The legal precedents are not really clear, and individual cases are played out by the ear.

      • “Both parents must consent to it, but the proceedings must be initiated by the husband, not the wife.”

        So just another confirmation of ‘husband owns wife and kids and he is ‘head’ of the family’.

        • Yep, pretty much.

          Folks asked for ‘religious sensibilities’ to be codified in law; well, they got what they want.

        • I guess their marriage still remains under the hindu act. Which is why I wonder if it makes more sense to always use the special marriage act irrespective of your religious tilt.

        • Non-Hindu adoption is done under the Guardian and Wards Act, which is decidedly more egalitarian than the HAMA.

          However, adoptions under the GWA are not legally considered to be ‘adoptions’ proper, but rather transfers of guardianship. In practice, this is mostly the same as adopting a child. The main difference is that any legal relationship between the adoptive parents and the child ends when the child ceases to be a minor. Also, guardians appointed under the GWA may be given suitable renumeration by a court for guardianship.

          If both parents have ceased to be Hindus, and if they were married under the Hindu marriage act, then they have a right to go to court and seek that the marriage be rendered void (i.e, get a divorce).
          Also, though the marriage is technically void the moment one or both of the protagonists cease to be Hindus, no third person can petition for the voidance; it must be either the husband or the wife who petition for it.

      • For the vast majority of people, yes.

        It makes more sense from a man’s perspective too, because the kind of family (Hindu/Non-Hindu) you are also decides inheritance rules. Hindu inheritance rules can be very complicated, restrictive, non-uniform, and often unfair, depending on which state you are in.

        • If only I knew of this when we got married! I don’t know if being married under an act is decides what type of marriage certificate you get. If so then I’m quite sure that our certificate must’ve been under the hindu marriage act. The BMC didn’t even offer us any other kind, we were just given one form and asked to bring it back fully filled. Should’ve known better!

        • Well, even if you got married under the Hindu Marriage Act and wish to change now, nothing is lost.

          I do believe it’s possible to convert any form of marriage into one covered by the special marriage act alone, as long as you abide by the basic rules of the act (both partners above the minimum age, not incapable of consenting etc.). If I remember right, you simply need to provide proof of your previous marriage, along with your application. At this point, there is a one month waiting period for anyone to raise any objections against the marriage under the grounds covered by the act, following which, the marriage is registered in the presence of three witnesses.

          There can be many reasons you’d want to switch to the SMA.

          Best bet: Talk to your lawyer. And if you do decide to go ahead with it, make sure you check out the property rights and inheritance angle, because that’s usually the tricky part.

  8. When we planned to get married, we did it under special marriage act, even though we are both hindus.. sheer luck??? :-) have no idea why my husband picked that. he claimes he had no idea , the clerk asked him if it was a love marriage without parental consent and my husband thought he wa sjust curious…
    If both parents are maried and present or married at time of birth i would say both have to decide to give the baby up.however if they broke up and are not together and the mom doesn’t want the baby and the dad does, guess he can always raise the child by himself or vice versa..
    if one parent is not in the picture or not married guess the mom can decide.

  9. Also, one does not have to only adopt under HAMA these days. The Juvenile Justice Act is in force and in states where the JJ Board has been constituted, this is the better law to adopt under. It does not discriminate between single people and married couples, gay/lesbians and heterosexuals, gives equal status to the husband and wife, does not require for a child of the opposite sex to be adopted if the person adopting already has a child, et al and affords all legal rights to the child that a biological child would have (the only reason HAMA was better than the Guardians and Wards Act – where non-Hindus are not legal parents, only guardians…though there’s no difference in daily life between the two!)

    When religion is codified as law, stuff like discrimination and gender inequality creep in.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s