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BOMBAY HIGH COURT
Bharati Dangre and Manjusha Deshpande, JJ.
Nisha Pradeep Pandya alias
Nisha Amit Gor and Ors. – Petitioners
versus
Union of India and Ors. – Respondents
Writ Petition No.1085 of 2023 with Interim Application (L) No.21485 of 2024 with Interim Application (L) No.12194 of 2023 with Interim Application (L) No.10867 of 2023 in Writ Petition No.1085 of 2023 alongwith Writ Petition No.205 of 2023
Decided on 4.5.2026
Counsel for the Parties:
For the Petitioner in WP No.1085/2023: Mr. Vishal Kanade a/w Ms. Tanaya Patankar i/b Mr. Sameer Sawant
For the Petitioner in WP No.205/2023: Mr. Avinash Gokhale a/w Ms. Amrin Khan
For the Union of India: Mr. Anil Singh, ASG a/w Ms. Savita Ganoo, Mr. Aditya Thakkar, Mr. Adarsh Vyas and Ms. Rama Gupta i/b Ms. Anusha Amin
For the Respondent Nos.4 and 5: Mr. Danish Qureshi i/b Mahimtura & Co.
For the State: Ms. P.H. Kantharia, GP a/w Ms. Jyoti Chavan, Addl. GP
IMPORTANT POINT
Adoption – District Magistrate is well suited to act and assist in welfare of children.
Headnote:
Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 16(1) – Juvenile Justice (Care and Protection of Children) Amendment Rules, 2022 – Constitution of India – Article 14 and 21 – Adoption – Challenge to amendment introduced by Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 – Replacement of word ‘Court’ with ‘District Magistrate’ – Robust mechanism which exist under Juvenile Justice Act, with aid of Authority, constituted for said purpose and process of adoption, being well guided by Statute itself, no difficulty in District Magistrate implementing provisions of Statute and determination of eligibility of prospective adoptive parents – District Magistrate is well suited to act and assist in welfare of children – Under various statutes, Executive Authorities are conferred with quasi-judicial functions – Strict separation of powers is neither possible nor desirable and there are some overlapping functions, which are required to be discharged – No substance in challenge raised by Petitioners. (Paras 23, 27 and 28)
Result: Writ Petitions dismissed.
JUDGMENT
Bharati Dangre, J.—Writ Petition No.1085 of 2023 filed by the Petitioners Nisha Pradeep Pandya and Pradeep Baijnath Pandya raise a challenge to the amendment introduced by the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021, in the Juvenile Justice (Care and Protection of Children) Act, 2015 alongwith the Juvenile Justice (Care and Protection of Children) Amendment Rules, 2022, insofar as they have replaced the word ‘Court’ with ‘District Magistrate’. A challenge is also raised to the consequential amendments in the Act and Rules by claiming that they are violative of Article 14 and 21 of the Constitution of India and defeat the basic structure doctrine which shall enforce concept of equality and separation of power.
The second Writ Petition No.205 of 2023 filed by Mohammad Javid Khan and Shewar Mohammed Javid Khan is concerned with adoption of the child to the proposed parents, in close relation of Petitioner No.2 who had filed a Foreign Adoption Petition under Section 16(1) of the Juvenile Justice Act, 2015 and the Regulations of 2017 and challenge is also raised to the conferment of the judicial powers from the Collector to the District Magistrate (executive) in the wake of the Juvenile Justice (Care and Protection of Children) Model Amendment Rules, 2022, being introduced and challenge is also raised to the provisions in the Amendment Act, 2021 to the extent that it contemplate transfer of power from the ‘Court’ to the ‘Collector’ and ‘District Magistrate’ and the claim is, it is ultra vires to the Constitution.
2 On 10/01/2023, the Division Bench noted that there is no stay to the implementation of the amendment and directed the Government to file its Affidavit in Reply and also issued notice to the Attorney General. On the very same day, ad-interim order was granted in terms of prayer clauses (d), (e) and (f), as a result of which the Court stayed the effective implementation and purport of the letter of 30/09/2022, issued by Respondent No.2 and it restrained the Respondents from transferring pending adoption matters before the District Magistrate for adjudication.
3. We have the learned counsel Mr. Vishal Kanade for the Petitioners in Writ Petition No.1085 of 2023 and Mr. Avinash Gokhale for the Petitioner in Writ Petition No.205/2023, who adopted the arguments of Mr. Kanade and tendered written submission. Respondent-Union of India is represented by the learned Additional Solicitor General Mr. Anil Singh, who would rely upon the Affidavit filed by the Under Secretary, Ministry of Women and Child Development Department, justifying the amendment and he has also placed on record written submissions opposing the reliefs in the Petitions by placing reliance upon various authoritative pronouncements.
4. With consent of respective counsel, we deem it appropriate to issue ‘Rule’ and at their request, we have taken up the Petitions for final hearing at the stage of admission.
5. Mr. Vishal Kanade, representing the Petitioners i.e. a married couple in Writ Petition No.1085 of 2023 would submit that they were interested in pursuing the adoption process under the Juvenile Justice Act, 2015 and on being aggrieved by the Amendment effected by the Amending Act thereby assigning the function, which was earlier vested under the provisions of Juvenile Justice Act in the ‘Court’ being assigned to the ‘District Magistrate’ and it is a matter of concern as according to him, grant of acceptance of a child in adoption is a judicial function, which could not be delegated to an Executive Authority like a ‘District Magistrate’ who may not possess the necessary infrastructure as well as necessary expertise in this regard.
According to Mr. Kanade, a District Magistrate, being a Chief Executive Officer of a District may not also be conversant with the niceties of the law and, therefore, by substituting the role played by the Court in the whole adoption process by that of the Magistrate, would have an adverse impact
