Should ex-spouse’s consent be required for new partner to adopt your child? Plea in SC raises issue

Petitioner's ex-husband filed for divorce when she was 9 months pregnant & has never seen their son. She asks for exemption from consent requirement so her new husband can adopt the child.

New Delhi: A case involving a former couple has brought a pertinent legal issue before the Supreme Court on the question of consent by a former spouse if a parent and her current spouse want to adopt a child of the former couple. 

The petitioner, a Supreme Court lawyer, approached the top court demanding a direction to the registrar of birth and death in New Delhi to register the adoption deed by her and her now-husband, the child’s stepfather. 

She demanded that this adoption be allowed without her former husband’s consent, asserting that “the peculiar facts in the present case put the petitioner in an impossible situation to seek the requisite consent from her former husband”. 

Among other things, she pointed out that “the former husband has not seen the child even once till date, including the time of the birth”. Narrating the facts of her case, she highlighted the difficulty she faced in approaching her former husband, also a lawyer, for his consent for the adoption.

Additionally, she also requested the court to pass directions to the state authorities to make amendments or clarify that the mandatory consent required by the other spouse may be exempted in certain cases: if the court has granted the guardianship and custody of the child exclusively to a particular parent and if the other parent has renounced all his rights over the child — including visitation rights — based upon mutual consent under the terms of a settlement between the parties. 

This is “in view of the rapid societal changes wherein divorce proceedings are becoming more prevalent and the women being financially independent are choosing to keep the custody and guardianship of the child”, she asserted.

What does the law say, and what does the petition before the Supreme Court demand? ThePrint explains. 

What the law says

In her plea, filed through advocate Vanshaja Shukla, the lawyer demanded an exemption from the mandatory consent requirement under the Hindu Adoption and Maintenance Act, 1956. Section 9 of this law talks about the people capable of giving a child up for adoption — only the father or the mother can do so.

Clause 2 of Section 9 says that the father or the mother, if alive, shall have equal right to give a son or daughter up for adoption. However, it adds a condition to this.

It says that such a right can be exercised by either of them only with the consent of the other, unless “one of them 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 the consent condition from which the petitioner now wants an exemption. She has sought this exemption through the court’s extraordinary jurisdiction under Article 142 of the Constitution, which allows the Supreme Court to pass any order necessary to do “complete justice” in any case. 

‘No efforts to see the child’

The petitioner and her ex-husband tied the knot in November 2013 and have a son who is now eight years old. In her plea, the woman told the court that she was “deserted by her former husband during her pregnancy and was sent to her parental home” in September 2015. He then filed a divorce petition when she was nine months pregnant. 

The “former husband has made no efforts to see the child since birth,” she asserted. 

She further alleged that her husband was in an “illicit relationship” with her sister-in-law (her brother’s wife). She claimed to have caught her husband in a compromising situation with her sister-in-law in a hotel, which led to the former husband and the sister-in-law filing a rape case against the petitioner and her family.

Eventually, two memorandums of understanding (MoU) were drawn up in February 2016 between the two couples — the petitioner and her ex-husband, and the petitioner’s brother and her sister-in-law. The MoU said that the petitioner would have sole custody of the child with no visitation rights for the father. 

In September 2016, the family court also granted divorce to both parties. However, the petitioner claimed that while the MoU they signed said that the parties would cooperate in the quashing of the rape case, her former husband and sister-in-law “rescinded” their agreement with those terms. 

This case is still pending before the trial court, with the petitioner and her family members being charged under various IPC provisions including Sections 307 (attempt to murder), 354B (assault or use of criminal force to woman with intent to disrobe), 376D (gangrape), and 341 (wrongful restraint).

‘In the child’s best interest’

The petitioner highlighted the sequence of events between the parties, alleging that her former husband had been “harassing the petitioner by impeding in her professional growth as a lawyer by filing repeated frivolous complaints” against her. She listed complaints about her clearing the Supreme Court Advocate-on-Record exam and her nomination for the post of executive member in the Supreme Court Advocates-on-Record Association (SCOARA), among others. 

She remarried in 2020, and her husband now wishes to give the child his name as the father, for all legal, administration and succession purposes, she told the court. 

“Further, the same would be in the best interest of the child, as the child sees only the petitioner’s husband as his father, not his biological father, who has never ever seen the child. Keeping the nascent age of the child, the petitioner being a caring and dutiful mother wishes to shield the child from the bitter reality of his biological father,” she said in her petition. 

The petitioner further points out that for consent under Section 9(2) of the 1956 law, she has to approach her former husband, “which is practically impossible”. Her reasons for this include bail conditions imposed by the trial court, which bar her from approaching any prosecution witnesses, and the fact that her husband has never appeared before the trial court or the Delhi High Court in the case. 

She further pointed out that she has the sole custody and guardianship of the child, and asserted that “it is not possible for the petitioner to seek the consent of biological father-former husband, as a prerequisite for registering the adoption deed, especially when the former husband has left no stone unturned to harass and humiliate the petitioner from (sic) past almost eight years”.

‘Court’s constitutional duty’

The petitioner has therefore demanded that the court issue an exemption for the requirement of her former husband’s consent, asserting that without an adoption, the child cannot have her current husband’s name as the father on the child’s documents, “which is almost cruel and if noticed by the child can impact the mental health and self-esteem of the child”.

She told the court that in November 2022, the petitioner and her husband performed the ‘datta homam’ ceremony by which the petitioner, as required by Section 9 of the 1956 law, allowed her current spouse to adopt the child. However, the requirement for the ex-husband’s consent now stands in their way to get the adoption deed registered.

Apart from relief in her case, she has also demanded that the top court issue a clarification to the relevant state authorities on allowing an exemption from the requirement for consent in the case when exclusive custody of the child is granted to a particular parent and in case the other parent has renounced all his rights over the child. 

“The petitioner submits that it is the constitutional duty of this Hon’ble Court to help the legislature be at pace with the changing times and/or amend the law so as to keep the same, within constitutional limits,” the petition asserted.