Hindu Adoption and Maintenance Act,1956: Leading Caselaw (Re: Adoption of Payal @ Sharinee Vinay Pathak and his wife Sonika Sahay)

Facts:

The First and Second Petitioners who are Hindus married they both have two young children. One of whom is a subject matter of the current ongoing case, she has been with the petitioner since 4 years now. The couple who is surrendered their daughter for adoption after she was born in 2003, according to guidelines instructed by the court. A petition has been filed seeking a declaration that the Petitioners are the adoptive parents of the child with consequential rights, privileges and responsibilities under the law.

 

Issue:

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?

 

Ratio Decidendi:

The Hindu Adoptions and Maintenance Act, 1956 was enacted by Parliament "to amend

and codify the law relating to adoptions and maintenance among Hindus". Following sections are under consideration for the case,

Section 4: gives overriding force and effect to the Act over any text, rule or interpretation of Hindu law or any custom or usage prevalent before the commencement of the Act and over any other law in force immediately before the commencement of the Act insofar as it was inconsistent with the provisions of the legislation. 

Section 11: provides that in every adoption certain condition must be complied with.

Clauses (i) and (ii) of Section 11 are as follows:

(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.

 

What these clauses stipulate is a prohibition on the adoption of a child of the same gender where the adoptive father or mother already have a child living at the time of the adoption. If the adoption is of a daughter, the adoptive father or mother must not have a Hindu daughter or a son's daughter living at the time of adoption. Where the adoption is of a son, the condition is more stringent because the adoptive father or mother should not have a Hindu son, son's son or son's son's son living.

 

Constitutional provisions:

Article 15 of the Constitution empowers the State, in Clause (3), to make special provisions for women and children. Article 39 is part of the Directive Principles of State policy. Clause (e) of Article 39 directs the State in framing its policies to secure that the tender age of children is not abused. In Clause (f) the State has to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity so as to ensure that childhood and youth are protected against exploitation and against moral and material abandonment. Many such more mentions are there in the constitution as article 45, 47, 51A etc

 

Fundamental as they are in the governance of the country, these provisions are part of a

sensitive vision of the founding fathers. Freedom and dignity of the young must count above all. The young are amongst the most vulnerable to disease and deprivation which follow upon abandonment and isolation. Poverty has no religion.

 

The Juvenile Justice Act, 2000:

The Juvenile Justice (Care and Protection of Children) Act was enacted in 2000, "to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection". The object of the Act is to provide for "care, protection and treatment by catering to their development needs and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation". 

Act as now enacted is intended to provide effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship and aftercare of abandoned, destitute, neglected and delinquent juveniles and children.

The following section is relevant:

Section 41 contains the following stipulations for offering children in adoption:

(5) No child shall be offered for adoption

(a) until two members of the Committee declare the child legally free for placement in the case of abandoned children,

(b) till the two months period for reconsideration by the parent is over in the case of surrendered children, and

(c) without his consent in the case of a child who can understand and express his consent.

(6) emphasizes that the Court may allow a child to be given in adoption 

(a) to a person irrespective of marital status; or 

(b) to parents to adopt a child of the same sex irrespective of the number of living biological sons or daughters; or 

(c) to childless couples.

 

While enacting the Juvenile Justice Act 2000 the legislature has taken care to ensure that its provisions are secular in character and that the benefit of adoption is not restricted to any religious or social group.  The religious identity of the child or of the parents who adopt is not a precondition to the applicability of the law. The law is secular and deals with conditions of social destitution which cut across religious identities. The legislature in its wisdom clarified in Sub-section (6) of Section 41 that the Court may allow a child to be given in adoption to parents to adopt a child of the same sex irrespective of the number of living biological sons or daughters. This provision is intended to facilitate the rehabilitation of orphaned, abandoned or surrendered children. The condition must apply to all persons irrespective of religious affiliation who seek to adopt children of that description. The object of rehabilitation and providing for social reintegration to orphaned, abandoned or surrendered children is a matter of high legislative policy. It is in effectuation of that policy that the legislature has stipulated that adoption of such a child must proceed irrespective of the marital status of a person taking in adoption and irrespective of the number of living biological children of the parents seeking adoption. In such a case the embargo that is imposed on adopting a child of the same sex by a Hindu under Clauses (i) and (ii) of Section 11 of the Hindu Adoptions and Maintenance Act, 1956 must give way to the salutary provisions made by the Juvenile Justice Act. Alternatively, even if there were to be a conflict between the provisions of the Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act of 2000, it is the latter Act which would prevail. This is on the well settled principle that when there are two special Acts dealing with the same subject matter, the legislation which has been enacted subsequently should prevail. 

 

Judgement: 

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 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.