Option of Adoption Need Not Be Restricted Only to Children in Conflict With the Law, A Child in Need of Care and Protection, An Orphan, Surrendered and Abandoned Child: Bombay High Court – Nagpur Bench

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Excerpt:

The Bombay High Court, Nagpur bench directed that the adoption of a child need not be restricted only to children in conflict with the law, children in need of care and protection, an orphan, surrendered and abandoned child and quashed in the order pronounced by the district court.

Facts of the case

The biological parents and the prospective adoptive parents of a minor girl child were claiming whether the child could be given and taken in adoption under the provisions of the Juvenile Justice act of 2015. Initially, The adoption policy was implemented to continue the family lineage and ancestor worship, over a period of time the adoption had been undertaken in order to fulfill the needs of children who were in distress and those in need of care and protection which was the reason why the child was being adopted in the present case. The application was initially rejected by the district court on the grounds that the child in the present case was neither a child in conflict with the law, a child in need of care and protection, an orphan, surrendered, or abandoned child as per the provision of Juvenile Justice Act 2015. An admission application was filed by the applicant in order to validate the adoption of the minor girl child.

 

Arguments before the court 

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The counsel for the petitioner made a contention that even though the provision for the adoption of a child by relatives was specified under Juvenile Justice Act 2015, the procedure for adoption need not be limited only to the children who were found to be in conflict with the law or needing care and protection. The counsel further submitted that the impugned order should be set aside and that the applicant should be allowed to be able to adopt the minor girl child. It was also submitted that the consideration taken by the court by holding Juvenile Justice Act 2015 was not applicable and also that it was wholly erroneous and the same deserved to be set aside.

 

Since there were no respondents in the present application the court-appointed Mr. F. P. Mirza learned counsel as amicus curiae to assist the court on behalf of the respondent. The learned amicus curiae referred to various judgments and further submitted that the view adopted by the court was extremely narrow and the changes brought about in the  Juvenile Justice Act 2015 were not considered. The amicus curiae also referred to the judgment of the Punjab and Haryana High Court in the case of Jasmin Kaur versus Union of India where it was held that the procedure for the adoption contemplated under the  Juvenile Justice Act of 2015 and regulation of 2017 would not be applied if the child was adopted under the Hindu Adoption and Maintenance Act 1956.

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Moreover, the provisions of the Juvenile Justice Act also emphasize the adoption of children by their relatives. In this case, the child is sought to be adopted by the relatives who are the maternal uncle and aunt of the child and are the only ones covered under the definition of relative under section 2(52) of the Juvenile Justice Act 2015. By placing these following contentions the amicus curiae supported the contentions of the applicant and stated that the child was eligible for adoption by the relatives.

 

Court’s observation 

From the arguments made and the judgements that were relied upon by the councils, the court had observed that no judgements less than that there could never be an adoption of a child under the provisions of the Juvenile Justice Act 2015. The court has also considered the provisions of the   Juvenile Justice Act 2015 read with the regulations of 2017, had observed that the adoption of children could not be restricted only to children in conflict with the law on those in need of care and protection, orphaned, abandoned and surrendered children.

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Court’s Decision 

The court had quashed and set aside the order of the district court and had directed to consider the application filed by the biological parents and the adoptive parents afresh. The court held that it should dispose of the application submitted by the applicant as expeditiously as possible and had made the revision application stand partly allowed.

Click here to view the order

 


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