The Kerala High Court recently observed that adoption by the stepparent cannot be permitted as long as the biological parent does not give his consent. The High Court also held that Regulation 55 (3) of Adoption Regulations, 2022, mandates that if there is any litigation regarding the custody rights of the child, the adoption process can be commenced only after the litigation is finalised.

The High Court was considering a petition filed by the biological mother and stepfather of a child whereby they sought a direction to the Central Adoption Resource Agency to relax the stipulation of obtaining consent from the biological father.

The Single Bench of Justice C.S. Dias asserted, “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 stepparent cannot be permitted.”

Advocate A. Parvathi Menon represented the Petitioners while Advocate Rajesh Sivaramankutty represented the Respondents.

Factual Background

The first petitioner was married to the fifth respondent, and a son was born out of their wedlock in the year 2007. Their relationship became strained, which led to litigation. As per the terms of the compromise, the permanent custody of the child was given to the first petitioner-mother, and interim custody of the child was given to the father. The first petitioner got remarried, and both the mother and the stepfather of the child registered their names with the Resource Adoption Agency for step-parent adoption of the child.

They also applied to the Child Welfare Committee ― the third respondent ― seeking consent for the stepparent adoption. However, by an order, the stepfather’s request for adoption was declined. The Petitioners thus approached the High Court seeking quashing of the said order and relaxing the procedure under the Adoption Regulations, 2022.

Reasoning

In view of the framework of the Act and the corresponding regulations, the Bench explained that 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 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”, the Bench said.

As per the Bench, 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). In light of the fact that the fifth respondent-father had not signed the consent letter and had objected to the adoption, the Bench found no illegality in the order passed by the Child Welfare Committee.

Coming to the petitioner’s contention that the first respondent- Central Adoption Resource Agency has the power to relax any regulation under Regulation 63, the Bench stated that the Agency is only empowered to relax any Regulation and not the provisions of the Act. “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 litigation is finalised”, it added.

The Bench also observed, “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.”

Thus, the Bench dismissed the Petition and held that the petitioners' request to direct the first respondent to relax the stipulation of obtaining consent from the fifth respondent cannot be permitted.

Cause Title: X v. Central Adoption Resource Agency & Ors. (Neutral Citation: 2025:KER:18299)

Appearance:

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

Respondents: Advocates Rajesh Sivaramankutty, K.V.Antony Vijina K., Isaac George, Arul Muralidharan, Government Pleader Vidya Kuriakose

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Kerala High CourtJustice CS Dias

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.