Bombay High Court: Manish Pitale, J., while stressing upon the concept of adoption expressed that:
The practice of adoption has been prevalent since ancient time and in different societies the established practices and norms have evolved over a period of time.
With the advent of democracy and modern form of government, such customs, traditions and practices have found their way in codified law through statutes enacted by the Legislature.
There are personal laws enacted specifying rules and procedure for adoption, as also secular laws for regulating such procedure.
Why the District Judge rejected the application filed by the applicants under provisions of JJ Act, 2015 and Adoption Regulations, 2017?
Since the child in the present matter was neither a child in conflict with law, nor a child in need of care and protection, nor an orphan, nor a surrendered/abandoned child, the provisions of the JJ Act, 2015 and the Regulations framed thereunder are not applicable.
Bench on perusal of the provisions of JJ Act, 2015 noted that there was a departure from the provisions of the earlier enactment i.e. JJ Act, 2000.
High Court observed that:
JJ Act, 2015, not only intends to take care of children, who are in conflict with law as defined under section 2(13) of the JJ Act, 2015 and children in need of care and protection defined under section 2(14) thereof, but also to provide for and regulate adoption of children from relatives and adoption by step-parent.
Court below had adopted a restrictive interpretation of the applicability of the JJ Act, 2015.
Hence, following is to be examined in the present matter:
Whether the above-stated restrictive approach was justified?
High Court noted that a perusal of the provisions of JJ Act, 2015 shows that an elaborate procedure is laid down and contemplated for the adoption of a child by relatives, who are also specified under the said enactment.
Further, it was added that if adoption under the JJ Act, 2015, was to be restrictively applicable only to children in conflict with law or those in need of care and protection, such elaborate provisions governing the procedure for adoption by relatives or stepparents would not have been provided.
The applicant’s counsel as well as the Amicus Curiae are correct in submitting that the JJ Act, 2015, is secular legislation available for the applicants herein to undertake the process of adoption of the girl child.
In the present matter, the child was sought to be adopted by the relatives, who being the maternal uncle and aunt of the child were clearly covered in the definition of ‘relative’ under Section 2(52) of the JJ Act, 2015.
In the Supreme Court’s decision of Shabnam Hashmi v. Union of India, (2014) 4 SCC 1 observation was made, about availability of choice to a person to undertake adoption either under the personal law or under a secular legislation, which was a small step towards reaching the goal of Uniform Civil Code, enshrined under Article 44 of the Constitution of India.
Lower court in the instant matter, completely ignored the availability of choice as was observed in the above decision by extremely restrictive and erroneous interpretation to JJ Act, 2015 provisions for adoption of girl child.
High Court held that on appreciation of the provisions of the JJ Act, 2015 read with Regulations of 2017, adoption of children cannot be restricted only to children in conflict with law or those in need of care and protection or only those children who are orphaned, abandoned or surrendered children.
Therefore, lower court was directed to consider the application afresh on merits under the provisions of the JJ Act, 2015. [Sumed v. Manoj, 2021 SCC OnLine Bom 955, decided on 30-06-2021]
Advocates before the Court:
Mrs. Ira P. Khisti, counsel for the applicants.
Mr.F.T.Mirza, Advocate appointed as Amicus Curiae.
