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2009 Supreme(Bom) 1213
High Court of Judicature at Bombay
THE HONOURABLE DR. JUSTICE D.Y. CHANDRACHUD
In the matter of adoption of Payal @ Sharinee Vinay Pathak
Indian Adoption Petition No.31 of 2009 with Judge’s Order No.298 of 2009
Decided on : 16-09-2009
For the Appearing Parties:Vishal Kanade with Tanmaya Nirmal i/b Mahimtura and Company, Advocates, O. Harindran, representative of ICSW.
Headnote:Hindu Adoptions and Maintenance Act, 1956 - Section 11(i)(ii) - Juvenile Justice (Care and Protection of Children) Act, 2000, Sections 2(d) and 41(2) - Guardians and Wards Act, 1890, Section 7 - Adoption of child of same gender under provisions of Act, 2000 - Adoption petition - Seeking declaration that petitioners are adoptive parents of child with consequential rights - Petitioners having biological daughter obtained guardianship of minor child of same sex under provisions of Act, 1890 - Petitioners eligible to adopt child under Act of 2000 - Adoption of surrendered, abandoned children is mission of law - Declaration made that petitioners adoptive parents of child with all rights, privileges, responsibilities and consequences under law - Petition for adoption allowed. - It would be necessary to emphasize that the provisions of Section 11(i) and (ii) of the Hindu Adoptions and Maintenance Act, 1956 can be harmonised with those of the Juvenile Justice Act, 2000. The later Act of 2000 carves out special provisions for dealing with the rehabilitation and integration of juveniles in conflict with law and children in need of special care and protection. Adoption of surrendered, abandoned and orphaned children is the mission of the law. That mission has to be achieved by allowing the adoption of children within the subclass, irrespective of the number of living biological children of the same gender. To that extent there is an exception to the embargo under Clauses (i) and (ii) of Section 11 of the Act of 1956. The embargo is to that extent lifted. The petitioners profess the Hindu religion. They already have a biological daughter. They have obtained guardianship under the provisions of the Guardian and Wards Act, 1890 of a minor child of the same sex. The child of whom they assumed guardianship did fit the description of a child in need of care and protection under Section 2(d)(v) of the Juvenile Justice Act, 2000 and of a surrendered child under sub-section (2) of Section 41. The petitioners were eligible to adopt the child under the Juvenile Justice Act, 2000 and the order of guardianship does not destroy that entitlement. The child was a surrendered child and was legally free for adoption. The substance and effect of the procedures prescribed under the Juvenile Justice (Care and Protection of Children) Act, 2000 have been complied with both the children are pursuing their education in the kindergarten class of nursery school at Vile Parle. The report of the school has been placed on the record. There is abundant material before the Court for the Court to conclude that it is manifestly in the interest and welfare of the child that the petition for adoption should be allowed. The child has already been with the petitioners for a period in excess of four years.
The petition is accordingly disposed of in terms of the reliefs sought before the Court. There shall be a declaration that the petitioners are the adoptive parents of Sharinee with all the rights, privileges, responsibilities and consequences under the law.
The Issue
1. The Petition before the Court raises an issue of the interpretation of the Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice (Care and Protection of Children) Act, 2000. The Hindu Adoptions and Maintenance Act, 1956 amends and codifies the law relating to adoptions and maintenance among Hindus and specifies conditions for valid adoption. One of them is that if the adoption is of a daughter, the father or mother who wish to adopt the child must not have a Hindu daughter (or a son’s daughter) living at the time of adoption. Parliament enacted the Juvenile Justice (Care and Protection of Children) Act, 2000 to regulate the interface of the law with children in conflict with the law and to provide for the rehabilitation and social integration of orphaned, abandoned or surrendered children. Adoption is one of the techniques recognized by Parliament to facilitate the object of rehabilitation. The Juvenile Justice Act does not incorporate a restrictive condition foreclosing the right of parents who have a child to adopt another child of the same gender. The Act recognises the right of parents to adopt children irrespective of the number of living biological sons or daughters.
2. The issue which arises before the Court is as to whether a Hindu couple governed by the Hindu Adoptions and Maintenance Act, 1956, with a child of their own can adopt a child of the same gender under the provisions of the Juvenile Justice Act of 2000. The issue raised presents significant ramifications on the entitlement of individuals and couples across the spectrum of religious and social groups in India to adopt children. The Juvenile Justice Act, 2000 is legislation of a secular nature. The human tragedies of orphaned and abandoned children straddle social and religious identity. The urge to adopt is a sensitive expression of the human personality. That urge again is not constricted by religious identity. The Court must harmonise personal law with secular legislation.
The facts
3. The First and Second Petitioners who are Hindus married on 29th June, 2001. Both of them are actors by profession, though the Second Petitioner, with two young children to look after, is on a sabbatical. The First Petitioner was born on 27th July, 1967 while the Second Petitioner was born on 19th January, 1977. Both of them have a daughter, who was born on 4th February, 2003.
4. In a Guardianship Petition (Indian Guardianship Petition 83 of 2001) instituted under the Guardians and Wards Act, 1890 before this Court on 13th April, 2005 the Petitioners sought their appointment as guardians of a female child. The child was born on 12th November, 2004 to a mother whose identity is in the interests of her privacy not necessary to be disclosed here. The mother and her spouse executed a declaration on 16th November, 2004, four days after the child was born, recording the circumstances in which they had decided to surrender the child at the nursing home where the child was born. The declaration stated that the mother and her spouse had been counseled by a social worker at Bal Vikas which is a placement agency recognised by the Government of India and that they had voluntarily agreed to surrender the child. At the foot of the declaration, a Scrutiny officer of the Indian Council for Social Welfare made an endorsement of having counseled the parents of the contents of the document and of making the mother aware of the fact that she had a period of two months to reclaim the child, failing which the child may be placed either in adoption or guardianship. The parents have not come forth to claim the child. An affidavit was filed before this Court on 13th April, 2005 by the managing trustee of Bal Vikas certifying the facts and recording an opinion that it would be in the interest of the child to place her under guardianship.
5. By an order of Hon’ble Mr. Justice A.M. Khanwilkar dated 8th June, 2005 the Petitioners were appointed guardians of the child
