The Bombay high court on Thursday said that in the case of adopted children, the names of their adopted fathers cannot replace that of the biological fathers in their birth records on the basis of only a registered adoption deed.
The division bench of Justice Abhay Oka and Justice Anuja Prabhudessai said that the change cannot be made unless the registered adoption deed is accompanied by an order of a competent court. “The consequences of allowing deletion of the biological father’s name and replacing it by the adoptive father’s in the record of birth of a child, without order of a competent court would be disastrous,” said the bench.
The court was hearing a petition filed by a couple from Mira Road, mother of a 13-year-old girl and her second husband. The woman and her first husband, the biological father of the girl, got a divorce and the permanent custody of the child was granted to the mother.
She later remarried and her husband adopted the child while the biological father of the girl was a party to the adoption deed. The couple got it registered and on the basis of the registered adoption deed sought a change in their daughter’s birth record. They approached the high court after the local deputy registrar of births and deaths rejected their plea in August 2016.
Advocate Archit Jaykar, who represented the petitioners, argued that the deputy registrar should not have rejected the application on the basis of registered adoption deed.
In support of his contention, Jaykar pointed out section 16 of the Hindu Adoption and Maintenance Act, 1956 which lays down what whenever any registered document is presented before a court, the court should presume that the adoption is done in accordance with provisions of the Act.
The judges, however, rejected the contention observing that section 16 lays down a rule of evidence and the presumption will be available only when the document is placed before a court of law. Registrar of births and deaths is not a court and cannot adjudicate whether the adoption is legal or not, the bench said rejecting the petition.
The judges also expressed doubts as to whether changes such as altogether deleting names of biological fathers of adopted children and replacing it with their adoptive ones can at all be made in the birth record, as it will be contrary to the purpose for which record is created. They, however, clarified that they have not dealt with this aspect of the matter, and the registrar of births and deaths is bound to make appropriate changes in birth record in accordance with order of a competent court, if any such order is issued and produced before them.