New Delhi: A mother cannot independently give her child up in adoption without the father`s consent as such an adoption is "nullity" in the eyes of law, a Delhi court has said.
Additional Sessions Judge (ASJ) Anuradha Shukla Bhardwaj made the observations while dealing with a man`s petition challenging his estranged wife`s plea seeking maintenance for herself and their minor daughter, who she had allegedly given in adoption.
The court also said if the woman has given away the child to someone else in adoption then also the man has the right to challenge the adoption and can take back the minor`s custody but till then he had to maintain his daughter.
Discussing the law relating to adoption amongst Hindus under the Hindu Adoption and Maintenance Act, the court said as per its provision, if the father is alive, he alone has the right to give the child in adoption.
"The mother does not have an independent right to give her child in adoption," the judge said while citing the law.
"In view of above, even if the wife has given her child in adoption to someone as is being claimed by the revisionist (man), such an adoption is nullity in the eyes of law.
"The man has his rights to challenge this adoption and take back the custody of his child. Till then he shall remain responsible for the maintenance of the daughter being her father," the court said.
The man, in his revision plea, had challenged the trial court`s order directing him to pay interim maintenance to his wife and daughter.
The man had said he was not liable to pay maintenance to his minor daughter as she has been given in adoption by his wife and he had also relied upon the adoption deed executed by the woman in favour of some other person.
The man had also alleged that his wife was living in adultery with some other man and was thus not entitled for alimony.
The woman, however, did not appear in the court despite service of summons.
The ASJ, in the order, said the man can request the trial court, where the maintenance petition was being heard, to direct the woman to come along with the child at the time of payment of the maintenance amount.
The court also asked the magistrate to consider the man`s plea without being influenced by its observations.
"The other allegation regarding the adulterous lifestyle of the woman is a matter of evidence and cannot be the basis of interfering with the order of the trial court having been passed on the basis of material available on record. The revision is dismissed being devoid of any merit," it said.