Bombay HC upholds 22 year-old's right to be adopted by 66-year old guardian

In a significant ruling, the Bombay High Court recently held that a 22-year-old woman, who was under legal guardianship of a Mumbai-based couple since 1998 has a right to legal identity and can be adopted by her 66-year-old guardian and adoptive father.

Justice GS Kulkarni passed an order to this effect on adoption petition filed by 66-year-old Mathew Inacio Abreo, who along with his deceased wife were appointed guardians of a girl child in 1998 by a court order. In his adoption petition, Mathew had sought to be declared the adoptive parent of the child, who is presently around 22 years old.

In view of the peculiar facts of the case, and after finding that the 22 year old woman had embraced Mathew and his wife as her family following their guardianship, the Court allowed the plea for adoptive status.

Inter alia, the Court observed that mere guardianship would not suffice and that it has lost efficacy as the woman has attained majority. Justice Kulkarni noted,

"She has to lead her life with dignity and confidence which she would be able do when the petitioner’s right to adopt her is recognised and reciprocally her right to be adopted by the petitioner also finds a legal recognition. It is thus necessary that these basic human rights as guaranteed and recognised by the Constitution are enforced and implemented."

In this case, the Indian Guardian plea filed by the couple had been allowed in 1998, a year after woman was born in 1997. The petitioner and his wife had no biological children. His wife passed away in 2018 due to heart attack.

It was submitted by advocate Rakesh Kapoor for the petitioner that the woman had continued living with the couple as their daughter, even after the guardianship came to an end upon her turning a major.

It was argued that if the plea for adoption was not allowed, it would cause serious prejudice to the woman as she would be deprived of her legitimate entitlement to the legal status to have the petitioner as her parent and further, she would be foisted with a status of being an orphan, although she was brought up by the petitioner as his own daughter.

Reliance was also placed on the Bombay High Court's ruling in Manuel Theodore Vs. Unknown to contend that there is a constitutional right of a citizen to have family and parents in adoption. It was further pointed out that the legislative vacuum in case of adoption when a citizen professes Christian faith was recognised in said judgement.

The Court was also informed that the petitioner was now living with his sister after he was diagonised with cancer as it was convenient for him to travel and rest amidst treatment for the same. All the same, it was submitted that the petitioner and the woman continue to share a loving relationship. Further, the Court was told that the ailing petitioner now needed his daughter's support at this crucial time.

In view of the principles laid down in Manual Theodore case, it was argued that it would be imperative to allow the plea, although there was a delay on the part of the guardians in approaching the court.

The Court, in turn, took note that there was material to show that the woman was well integrated into the family. A Scrutiny Officer of Indian Council of Social Welfare (ICSW) has given a representation to this effect.

After perusing submissions and material on record, the Justice Kulkarni observed that the 22-year-old woman has throughout remained under the guardianship of the petitioner and his late wife who has recently passed away.The Court observed,

“She is now well integrated into the petitioner’s family and is an inextricable part of the petitioner’s family. Defacto she has a status of being petitioner’s daughter."

Further, following a personal interaction with the woman, Justice Kulkarni also agreed that,

"She is aware about all the circumstances surrounding her. She is eagerly awaiting legal recognition of her status as the petitioner’s daughter."

Moreover, the Court referred to principles laid down in Manual Theodore case and said that it is imperative to permit adoption, even though she has attained majority.

Therefore, the Court allowed the plea, finding that the petitioner ought to be declared the adoptive parent of the woman. The Court also granted leave to petitioner to apply to the Municipal Authority to issue a birth certificate showing the petitioner and his deceased wife as woman's father and mother.

[Read Order]