Kerala High Court
Ammu Ajit vs Central Adoption Resource Agency on 5 March, 2025
Author: C.S.Dias
Bench: C.S.Dias
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WP(C) NO. 4509 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946
WP(C) NO. 4509 OF 2025
PETITIONERS:
1 AMMU AJIT
AGED 43 YEARS
W/O SANTHOSH R.V, VRINDAVAN, DIWANS ROAD, NEAR TDM
HALL, KOCHI, MG ROAD, ERNAKULAM, KERALA, NOW
RESIDING AT FLAT NO. 5054, PRESTIGE NEPTUNE'S
COURTYARD, MARINE DRIVE, KOCHI, PIN - 682018
2 SANTHOSH RV
AGED 44 YEARS
RESIDING AT FLAT NO. 5054, PRESTIGE NEPTUNE'S
COURTYARD, MARINE DRIVE, KOCHI, PIN - 682018
BY ADVS.
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
RESPONDENTS:
1 CENTRAL ADOPTION RESOURCE AGENCY
REPRESENTED BY IT'S MEMBER SECRETARY & CEO,
MINISTRY OF WOMEN & CHILD DEVELOPMENT, WEST BLOCK
8 WING 2 1ST FLOOR, R.K PURAM, NEW DELHI, PIN -
110066
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WP(C) NO. 4509 OF 2025
2
2 STATE ADOPTION RESOURCE AGENCY
REPRESENTED BY IT'S MEMBER SECRETARY, DIRECTORATE
OF WOMEN AND CHILD DEVELOPMENT, POOJAPPURA,
THIRUVANANTHAPURAM, PIN - 695012
3 CHILD WELFARE COMMITTEE
ERNAKULAM, RERESENTED BY IT'S CHAIRMAN, 287R+MGC
BORSTAL SCHOOL, SEAPORT - AIRPORT RD, ECHAMUKU,
KUNNUMPURAM, PADAMUGHAL, VAZHAKKALA, KAKKANAD,
KOCHI, KERALA, PIN - 682037
4 DISTRICT CHILD PROTECTION UNIT
ERNAKULAM, REPRESENTED BY CHILD PROTECTION
OFFICER, CIVIL STATION, THRIKKAKARA, KAKKANAD,
KOCHI, KERALA, PIN - 682030
5 PREM CHANDER
S/O SUNDARAMOORTHY, SAKTHI VEEDU, KIZHAKKETHARA,
KUNNISERY POST, ERUMAYUR, PALAKKAD, NOW RESIDING
AT 1 C, SURYA APARTMENT, FLORICAN HILL ROAD,
MALAPARAMBA, KOZHIKODE, PIN - 673009
BY ADVS.
RAJESH SIVARAMANKUTTY
K.V.ANTONY(K/522/2015)
VIJINA K.(K/229/2016)
ISAAC GEORGE(K/000586/2017)
ARUL MURALIDHARAN(K/000853/2018)
GOVERNMENT PLEADER SMT. VIDYA KURIAKOSE
DSGI SRI.T.C.KRISHNA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 28.02.2025 THE COURT ON 05.03.2025 DELIVERED THE
FOLLOWING:
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WP(C) NO. 4509 OF 2025
3
"C.R"
C.S.DIAS,J.
====================
W.P.(C)No.4509 of 2025
------------------------------ -
Dated this the 5th day of March, 2025
JUDGMENT
1. The petitioners' case, in brief, is as follows:
(i) The first petitioner was married to the fifth
respondent and a son was born in their
wedlock on 13.3.2007. Their relationship
got strained, which led to litigations.
Eventually, by Ext.P1 judgment passed by
this Court, the marriage between the
petitioner and the fifth respondent was
dissolved on mutual consent, and all the
cases between them were dismissed. As per
the terms of the compromise, the permanent
custody of the child was given to the first
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petitioner, and interim custody of the child
was given to the fifth respondent.
(ii) Later, disputes again arose between the parties
regarding the child's custody, which was
settled by Ext.P6 judgment passed by
the Hon'ble Supreme Court.
(iii) Since February 2016, the fifth respondent has
not attempted to visit or contact the child.
He registered himself on a Kerala Matrimony
site, stating that he has no children from his
previous marriage, virtually disowning his
child. While exercising the visitorial right
over the child, the fifth respondent picked up
a quarrel with the first petitioner, and a
crime was registered. The fifth respondent,
his mother and his brother have filed
an application before this Court to quash the
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criminal proceedings, which is still pending
consideration.
(iv) The first petitioner has got married to the
second petitioner. The child shares a close
bond with the second petitioner. Accordingly,
the petitioners registered their names with
the Central Resource Adoption Agency and
the State Adoption Resource Agency, the
respondents 1 and 2, for step-parent
adoption of the child. They also applied to
the Child Welfare Committee ― the third
respondent ― seeking consent for the step-
parent adoption. The second respondent
had issued notice to the fifth respondent for
his consent, but he objected to the
adoption. Then, the first respondent
suggested that the petitioners to get the
right of the fifth respondent to visit the
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child revoked by the Family Court. The
petitioners submitted a detailed
explanation to the first respondent to relax
the adoption regulations. The child has
also submitted a letter to the third
respondent, expressing his full consent for
the adoption. However, by Ext.P16 order, the
third respondent has declined the second
petitioner's request for adoption due to
the objection raised by the fifth respondent.
(v) The fifth respondent is involved in a fraud and
forgery case in the United Kingdom. He is
also an accused in a crime registered by the
Palakkad Police Station. Even though he
attempted to get the proceedings quashed
by this Court, the application was dismissed.
He has now appealed to the Hon'ble
Supreme Court.
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(vi) The fifth respondent has neglected the
welfare of the child. Given the fifth
respondent's criminal background, it is
unsafe to leave the child in his
custody. This is a fit case for the first
respondent to invoke Regulation 63 and
relax the procedure under the Adoption
Regulations, 2022 ('Regulations' for
short). Hence, Ext.P16 order may be
quashed, and the adoption regulations may
be relaxed.
2. The fifth respondent has filed a counter
affidavit, contending as follows:
(i) The second petitioner is a Christian, and
the child is a Hindu; therefore, the child
cannot be placed for adoption under the
Hindu Adoption and Maintenance Act.
Similarly, under Section 56 (2) of the
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Juvenile Justice (Care and Protection of
Children) Act, 2015 ('Act', for short), an
adoption is permissible only between
relatives. As the second petitioner is
not a relative of the child, the adoption
under the Act is also not permissible. As
per Regulation 55(2), the consent of the
fifth respondent is mandatory and
cannot be relaxed.
(ii) As per the compromise conditions recorded
in Ext.P1 judgment, the interim custody of
the child is given to the fifth respondent. The
first petitioner had made an oral
undertaking before the Honourable
Supreme Court that she would not object to
the fifth respondent talking to the child
over the phone.
(iii) It is only due to willful acts, omission and
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commission by the petitioners that the
fifth respondent is unable to establish a
bond with his child. Even though the fifth
respondent has attempted to connect with
his child, the same resulted in him
facing criminal charges.
(iv) The fifth respondent sent gifts to the child.
He also attempted to provide financial
support to the child, but the first petitioner
rejected the same. He also tried to have
custody of his child during vacations,
which the first petitioner denied. The first
petitioner has blocked all
communications between the child and the
fifth respondent.
(v) In Ext.R5(c), the fifth respondent has
submitted his objections to the
petitioners' adoption request. The fifth
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respondent is of the fond hope that he
will be able to speak to his son when he
attains majority. The writ petition may be
dismissed by upholding Ext.P16 order.
3. Heard; Smt. A Parvathy Menon, the learned
counsel for the petitioners, Sri. T.C. Krishna, the learned
Deputy Solicitor General of India, Smt. Vidya Kuriakose,
the learned Government Pleader and Sri. Rajesh
Sivaramankutty, the learned counsel for the fifth
respondent.
4. By Ext.P1 judgment, this Court dissolved the
marriage between the first petitioner and the fifth
respondent and ordered the child's custody to be shared
between the parties. In the subsequent round of
litigation, by Ext.P6 order, the Hon'ble Supreme Court
ordered the first petitioner to facilitate the fifth
respondent to contact the child over the phone. After
that, the first petitioner got married to the second
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petitioner, who now wants to adopt the child as his son
under the step-parent category as per the provisions of
the Act.
5. Sub-Sections (1) to (3) of Section 56 of the Act
lays down how an adoption can be resorted to, and it
reads as follows:
"56. Adoption.― (1) Adoption shall be resorted to
for ensuring right to family for the orphan, abandoned and
surrendered children, as per the provisions of this Act, the
rules made thereunder and the adoption regulations framed
by the Authority,
(2) Adoption of a child from a relative by another relative,
irrespective of their religion, can be made as per the
provisions of this Act and the adoption regulations framed by
the Authority.
(3) Nothing in this Act shall apply to the adoption of
children made under the provisions of the Hindu Adoption and
Maintenance Act, 1956 (78 of 1956). **** **** ****"
6. By exercising the powers conferred under
Section 68 (c) of the Act, the first respondent has framed
the Adoption Regulations, 2022.
7. Regulation 2 (26) defines a step-parent as a
parent who is married to a child's father or mother but is
not that child's biological father or mother.
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8. Regulation 4 lays down the category of children
eligible for adoption, which reads thus:
"4. Child eligible for adoption.- The following shall
be eligible for adoption, namely:-
(a) any orphan or abandoned or surrendered child,
declared legally free for adoption by the Child Welfare
Committee;
(b) a child of a relative defined under sub-section (52)
of section 2 of the Act;
(c) child or children of spouse from earlier
marriage, surrendered by the biological parents for
adoption by the step-parent".
(emphasis given)
9. Regulation 7 (22) stipulates that the surrender of
the child by the biological parent for adoption by the
step-parent shall be made before the Child Welfare
Committee in the format provided under Schedule XX.
10. Regulation 55 deals with adoption by a step-
parent, and it reads as under:
"55. Adoption by step-parent.- (1) The couple
(step-parent and one of the biological parents) shall register on
the Designated portal with the required documents as specified
in Schedule VI.
(2) Consent of the biological parents and the
step-parent adopting the child or children shall be as
provided in the Schedule XX.
(3) In case the custody of the child is under
litigation, the adoption process shall be initiated only
after the finalisation of the case by the Court concerned.
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(4) The step-parent or the couple shall receive due
verification by the District Child Protection Unit.
(5) The State Adoption Resource Agency shall
further refer the case to the Authority for necessary
approval following which pre-approval certificate shall
be issued by the State Adoption Resource Agency as
provided in the Schedule XXV.
(6) If the prospective adoptive parents have a foreign
passport, the case shall be referred to the Authority for expert
advice.
(7) The biological parent and the step-parent shall
file an application with the District Magistrate of the
district through the District Child Protection Unit where
the child is habitually residing, as per format provided in
the Schedule XXXII, after due verification from the
District Child Protection Unit and approval by State
Adoption Resource Agency.
(8) The District Child Protection Unit shall obtain a
certified copy of the adoption order from the District Magistrate
concerned and furnish a copy of the same online to the
Authority and the adoptive parents through the Designated
Portal.
(9) In case of inter-country adoption by step parent, the
process has to be followed as outlined in inter-country relative
adoption and requisite consent form has to be signed before the
Child Welfare Committee as provided in the Schedule XX and
further Family Background Report has to be completed as
provided in the Schedule XXI.
11. In view of the framework of the Act and the
corresponding regulations, if a step-parent has to adopt
his step-child, the child has to be surrendered by the
biological parent by jointly executing a consent letter
with the step-parent in the form specified in Schedule XX
of the Regulations. Furthermore, the consent form has to
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be attested by witnesses and then certified by the three
members of the Child Welfare Committee. Therefore, as
per the scheme of the Act and the Regulations, the Child
Welfare Committee's jurisdiction in a step-parent
adoption is limited to the certification of the consent
letter and nothing more.
12. Upon the certification of the consent letter,
the application has to be verified by the District Child
Protection Unit and the State Adoption Resource Agency
and then be referred to the Central Adoption Resource
Authority, who in turn has to issue a pre-approval letter
in the form mentioned in Schedule XXV, certifying that
the biological parent's consent has been obtained. Only
after getting the pre-approval letter can the biological
parent and the step-parent file a joint application before
the District Magistrate under Regulation 55 (7).
13. Analysing the scheme of the statute, it is
imperative that the biological parent surrenders the child
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as prescribed under Section 56 (1) of the Act read with
Regulation 4 (c).
14. It is pertinent to note that, under Regulation 55
(3), if the right to have custody of the child is under
litigation, the adoption process can be initiated only after
the litigation is finalised.
15. In the case at hand, the fifth respondent has
been granted the child's custodial rights as per Exts.P1
and P6 orders. Notably, the fifth respondent has neither
given his consent for the adoption nor indicated his
willingness; instead, he has expressly opposed the
adoption. It is considering the stipulation under
Regulation 55 (3) that the first respondent directed the
petitioners to approach the Family Court and get the fifth
respondent's right to have the custody of the child
revoked.
16. As already observed, the Child Welfare
Committee's jurisdiction concerning a step-parent
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adoption is limited to certifying the joint consent letter of
the biological parent and the step-parent. Under
Regulation 55 (7), the competent authority to pass an
adoption order is the District Magistrate, provided all the
statutory prerequisites are fulfilled.
17. In the current situation, given that the fifth
respondent has not signed the consent letter and has
objected to the adoption, there is no illegality in Ext.P16
order passed by the Child Welfare Committee.
18. The petitioners' next contention is that the first
respondent has the power to relax any regulation under
Regulation 63.
19. A reading of Regulation 63 shows that the 1 st
respondent is only empowered to relax any Regulation
and not the provisions of the Act. One of the foremost
processes for adoption is to get the child declared as an
orphan, abandoned or surrendered child as per the
mandate under Section 56 of the Act. The said
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declaration is substantive in nature and not a procedural
formality. The first respondent is not empowered to relax
a substantive provision of the Act.
20. In this context, it is relevant to refer to the
definition of adoption and its effect as per the provisions
of the Act.
21. Sub-Section (2) of Section 2 of the Act defines
adoption as the process through which the adopted child
is permanently separated from his biological parents and
becomes the lawful child of his adoptive parents with all
the rights, privileges and responsibilities that are
attached to a biological child.
22. Section 63 of the Act lays down the effect of
adoption, which reads as follows:
"63. Effect of adoption. - A child in respect of whom an
adoption order is issued by the District Magistrate, shall become
the child of the adoptive parents, and the adoptive parents shall
become the parents of the child as if the child had been born to
the adoptive parents, for all purposes, including intestacy, with
effect from the date on which the adoption order takes effect,
and on and from such date all the ties of the child in the family
of his or her birth shall stand severed and replaced by those
created by the adoption order in the adoptive family:
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Provided that any property which has vested in the
adopted child immediately before the date on which the adoption
order takes effect shall continue to vest in the adopted child
subject to the obligations, if any, attached to the ownership of
such property including the obligations, if any, to maintain the
relatives in the biological family."
23. The above provisions demonstrate 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. 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.
24. Given the consequences associated with
adoption, particularly concerning the substantive rights
of the biological parents and child, Regulation 55 (3) has
been incorporated mandating that if there is any
litigation regarding the custody rights of the child, the
adoption process can be commenced only after the
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litigation is finalised.
25. In the present case, the fifth respondent has the
right to have custody of his child, which will continue till
the child attains majority or until the order is modified or
cancelled by the competent court. The substantive and
intrinsic statutory right of the fifth respondent to have
custody of his child is not a matter that can be relaxed
and waived by the first respondent under Regulation 63;
instead, it is a matter which can only be decided by a
civil court. If not, 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
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his consent to the adoption, the adoption by the step-
parent cannot be permitted. Accordingly, the petitioners'
request to direct the first respondent to relax the
stipulation of obtaining consent from the fifth respondent
cannot be permitted. The writ petition is meritless and is
consequently dismissed.
Sd/-
C.S.DIAS, JUDGE
rmm/1/3/2025
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APPENDIX OF WP(C) 4509/2025
PETITIONER EXHIBITS
Exhibit P-1 TRUE COPY OF JUDGMENT IN O.P(FC) NO.
434/ 2014 DATED 19.09.2014
Exhibit P-2 TRUE COPY OF THE ORDER DATED 06.02.2016
BY THE LEARNED FAMILY COURT, ERNAKULAM
Exhibit P-3 TRUE COPY OF JUDGMENT IN OP (FC) 53/2016
DATED 06.04.2016
Exhibit P-4 TRUE COPY OF THE ORDER IN O.P 1631/2015
DATED 03.12.2016
Exhibit P-5 TRUE COPY OF THE ORDER IN E.P 73/2015
DATED 03.12.2016
Exhibit P-6 TRUE COPY OF THE JUDGMENT OF HONOURABLE
SUPREME COURT DATED 25.07.2016
Exhibit P-7 TRUE COPY OF THE RELEVANT PAGE FROM THE
MATRIMONY SITE DATED NILL
Exhibit P-8 TRUE COPY OF THE REGISTRATION RECEIPT
DATED 04.12.2023
Exhibit P-9 TRUE COPY OF THE REQUEST TO THE 3RD
RESPONDENT DATED 10.04.2024
Exhibit P-10 TRUE COPY OF THE LETTER OF OBJECTION
ISSUED BY THE 2ND RESPONDENT TO THE 1ST
PETITIONER DATED 23.08.2024
Exhibit P-11 TRUE COPY OF THE E-MAIL DATED 24.09.2024
FROM THE 1ST RESPONDENT
Exhibit P-12 TRUE COPY OF E-MAIL SENT BY 1ST
PETITIONER TO THE 1ST RESPONDENT DATED
30.09.2024
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Exhibit P-13 TRUE COPY OF E-MAIL SENT BY 1ST
PETITIONER TO 1ST RESPONDENT DATED
01.11.2024
Exhibit P-14 TRUE COPY OF THE LETTER BY MINOR AARYAN
TO THE 3RD RESPONDENT DATED 18.04.2024
Exhibit P-15 TRUE COPY OF COMMUNICATION SENT BY 1ST
RESPONDENT TO 2ND AND 3RD RESPONDENTS
DATED 02.12.2024
Exhibit P-16 TRUE COPY OF 3RD RESPONDENT'S ORDER
DATED 22.01.2025
Exhibit P-17 TRUE COPY OF E-MAIL SEND BY 1ST
PETITIONER TO THE 1ST RESPONDENT DATED
22.01.2025
Exhibit P-18 TRUE COPY OF JUDGMENT IN CRL.M.C NO.
4484/ 2021 DATED 12.12.2022
Exhibit P-19 TRUE COPY OF THE HONOURABLE SUPREME
COURT'S ORDER DATED 10.02.2023
Exhibit P-20 TRUE COPY OF ADVOCATE RAJESH PANANGAD'S
WITNESS STATEMENT DATED 29.09.2021
Exhibit P-21 TRUE COPY OF THE OBJECTIONS FILED BY
ADV. RAJESH PANANGAD BEFORE THE BAR
COUNCIL OF KERALA DATED 29.10.2022
Exhibit P-22 TRUE COPY OF THE COMPLAINT PREFERRED BY
THE PETITIONER BEFORE THE INDIAN HIGH
COMMISSION IN UK DATED 08.06.2015
Exhibit P-23 TRUE COPY OF THE COMPLAINT PREFERRED BY
THE PETITIONER BEFORE THE REVENUE
AUTHORITIES DATED 08.06.2015
Exhibit P-24 PHOTOGRAPHS OF AARYAN WITH THE SECOND
PETITIONER AND HIS SIBLINGS DATED NILL
Exhibit P25 series TRUE COPIES OF SEVERAL FEE RECEIPTS OF
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AARYAN SINCE 2015
Exhibit P26 TRUE COPY OF OFFER LETTER FROM THE
UNIVERSITY OF MANCHESTER DATED
23.11.2024
RESPONDENT EXHIBITS
Exhibit R5(a) A true copy of the chat history in
WhatsApp number +918129039666
Exhibit R5(b) A true copy of the email dated 29-5-2015
sent by the 1st Petitioner to 5th
Respondent
Exhibit R5(c) A true copy of the objection to the
adoption request of petitioners made by
Respondent dated 9-1-2025 before the 3rd
respondent
PETITIONER EXHIBITS
Exhibit P27 True copy of the affidavit of the 5th
respondent's brother, dated 25.2.25
