CAN PARENTS GIVE UP THEIR CHILD: LAWS ON SURRENDER OF CHILD IN INDIA

 A MYTHOLOGICAL EXAMPLE The classic example we have regarding the concept of "surrender/abandonment of child" is from the world...

 A MYTHOLOGICAL EXAMPLE

The classic example we have regarding the concept of "surrender/abandonment of child" is from the world's largest epic called 'Mahabharata'. Where Mata Kunti before her marriage in her curiosity to test the validity of a "mantra" uses it and as a result "Suryadev (Lord Sun)" appears in front of her to give her a blessing and he gives her a child named Karna. Mata Kunti became very anxious at this as she was an unmarried girl and what society will say about her. To circumvent from societal blames she decided to surrender the child to river Ganga, and as a result, she put the child in a basket and let it go with the unstoppable flow of the river Ganga

This act of Mata Kunti is known as "surrender of the child" by parent(s). Whether her act was right or not we are no one to justify, but we can surely ponder about the laws and situations which are prevailing in our time regarding "surrender of child".

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What's the Legal way to do it?

In the present time if a parent(whether married or unmarried) of a child wants to give up his child, then he/she has to follow the procedure prescribed under Juvenile Justice Act, 2015 (hereinafter JJ ACT).

SECTION 35 of the JJ Act talks about "Surrender of Children" and states that :

(1) A parent or guardian, who for physical, emotional and social factors beyond their control, wishes to surrender a child shall produce the child before the Committee.

(2) If, after prescribed process of inquiry and counselling, the committee is satisfied, a surrender deed shall be executed by the parent or guardian, as the case may be, before the committee.

(3) The parents or guardian who surrendered the child, shall be given two months time to reconsider their decision and in the intervening period the committee either allow, after due inquiry, the child to be with the parents or guardian under supervision, or place the child in a specialised Adoption Agency, if he or she is below 6 years of age, or a children's home if he is above six years of age.

The committee to which a parent or parents can surrender their child is known as Child Welfare Committee which is established by the State Government for every district, which consists of a chairperson and 4 other members. (SECTION 27 of JJ ACT).

To apply Section 35 as mentioned above, there are 3 vital essentials due to which parent(s) can be allowed to surrender their child, they are: 

• Physical Factors - If we take an example of a widow who has a child of 2 years, she is suffering from Covid-19 and is very tensed about her child, that if she dies, who will take care of her child after her. In this situation, she decides to surrender her child for his care and protection and better life even if she dies due to Covid-19. This is an example of a physical factor under which a committee can allow a parent to surrender his/her child.

• Emotional Factors - In the above example only, if the mother has no means for her livelihood and cannot arrange a one time milk for her child as she is surviving through hard times and financial crisis, she can't see her child also suffering and for the betterment of her child, she may surrender him to the Child Welfare Committee.

• Social Factors -  Take an example of a rape victim who is now a mother of a child. Just as Mata Kunti, who could not have afforded to let society know that she has a child before marriage, in the same manner, a girl in the present time also will have the same agony. In this condition also a parent can surrender a child.

WHAT WILL HAPPEN TO THE CHILD THEN?

When taking recourse of Section 35 of the JJ ACT,2015, a child is surrendered to the Child Welfare Committee, after that the Committee will declare the child legally valid for adoption according to Sub-section (2) of Section 38 of the JJ ACT.

Section 38(2): In case of a surrendered child, the institution where the child has been placed by the committee on an application for surrender, shall bring the case before the committee immediately on completion of the period specified in Section 35, for declaring the child legally free for adoption.

IS IT AN OFFENCE TO ABANDON A CHILD?

As we used to see in our 1980s Bollywood movies, that a mother leaves a child in a temple or at an unknown place to get rid of him due to some goons or some other factors. (you might have clicked in your mind many such Amitabh Bachchan's movies by now)

Well, those are movies, but this type of action if done in real life, then it will be termed an offence under INDIAN PENAL CODE,1860 (hereinafter IPC).

According to SECTION 317 of IPC: Whoever being the father or mother of a child under the age of 12 years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

As it is very clear from the above section, abandoning a child like that is considered as one of the heinous offences, as is punishable with imprisonment of 7 years.

As a reader of this blog, I invite you to share your views on it.

THANK YOU.

Nikhil Tak ( Campus Law Centre, Delhi University)