Case BriefsHigh Courts

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.

Case BriefsHigh Courts

Madras High Court: P.T. Asha, J., addressed a matter in relation to adoption and modification in the birth certificate of a minor in terms of change in the name of the biological father of the child.

Legal status of a biological daughter

Petitioners are the adopted father and biological/natural mother of minor seeking direction from the Court that petitioner 1 be appointed as a father of the minor female child and consequently, the minor child be entitled to the legal status of a biological daughter with all the rights of succession and inheritance in respect of the adopted father and a modified birth certificate of the minor be issued.

Adoption Regulations and the JJ Act

Petitioners have contended that the conditions prescribed under Adoption Regulations and the Juvenile Justice Act have fully been complied with while filing the present petition.

Bench on perusal of the facts and submission in the present matter stated that the parties are all Hindus and therefore bound by the provision of the Hindu Adoption and Maintenance Act, 1956.

In the instant matter, the biological father of the minor child died three years back, and hence proviso to Section 9(2) of the Hindu Adoption and Maintenance Act, 1956 would not be applicable to the case.

Adoption

Court observed that it is well open to the biological mother of the minor child to give her child to adoption and since both petitioner 1 and the petitioner 2 i.e. the biological mother of the child are happily married and living together and the minor has been living with them, there is no impediment to the said prayer of adoption.

 Birth Certificate of the minor cannot be modified

Bench stated that on the date when the birth certificate of the minor was issued, the biological father was alive and it is him who has been described as the father of the minor child in the birth certificate.

Adoption does not sever the relationship of the minor with her biological father. 

Only exception to the above is, when the biological father himself renounces his right as father of the minor and consents for the child to be taken by the adoptive father.

Court added that even in the above-stated cases, only the status of being a biological father does not change, only the status of adoptive father, custody and maintenance of the minor child changes hands.

In the present matter, the biological mother cannot deprive the minor child’s right to have the name of her biological father in her birth certificate.

Registration of the births is governed by the provisions of the Registration of Births and Deaths Act, 1969.

Under what circumstances can a correction or cancellation of the entry in the register of births and deaths be made?

Court stated that only under the following circumstances the birth certificate can be modified:

(a) When the entry is erroneous in form or substance; and

(b) The entry has been fraudulently or improperly made.

Under Section 15 of the Registration of Births and Deaths Act, 1969 it is clear that the original entry cannot be corrected/deleted and the incorporation of the new details can be made only in the margin.

In the present matter, Rule 5 of Tamil Nadu Registration of Births and Deaths Rules, 2000 talks about adoption and prescribes a form. Serial Nos. 7 and 8 relate to the name of the adoptive mother and the adoptive father.

Hence, the petitioner’s request to delete the biological father’s name from the original birth certificate is not legally sustainable since the rules clearly provide for incorporating the name of the adoptive parents separately in column nos. 7 and 8 as adoptive parents and not as natural parents.

Court held that the substitution of the name of petitioner 1 as the biological father of the minor cannot be permitted and taking into consideration the Rule 5 of Tamil Nadu Registration of Births and Death Rules, 2000, Court directed for issuance of a birth certificate as contained in Form 1-A of the Rules by effecting entries in column nos. 6,7,8,9 and 10 and the original birth certificate shall remain unaltered.

In view of the above, the original petition was allowed. [Vivek Narendran, In Re., 2020 SCC OnLine Mad 1758, decided on 20-07-2020]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and Vimla Singh Kapoor, JJ. allowed an appeal filed against the order of the Family Court whereby it had rejected the appellant’s application under Section 59 (7) of the Juvenile Justice (Care and Protection of Children) Act, 2015 thereby refusing to allow inter-country adoption of the “surrendered child”, namely, Princy, aged about 1 year and 7 months.

The subject child was declared available for adoption by the Child Welfare Committee, Jashpur. The child was provided with a registration number under the Adoption Regulations, 2017 framed in exercise of powers under Section 68(C) read with Section 2(3) of the JJ Act. The adoptive parents in Italy were found to be fit and suitable for adoption of the subject child in the Home Study Report prepared by the CIFA, an NGO. The Central Adoption Resource Authority (CARA) under the Ministry of Woman and Child Development, Government of India, has maintained a file authorizing Italian NGO CIFA to process inter-country adoption case originating from Italy. CARA had issued no objection to the adoption of the subject child by his Prospective Adoptive Parents (PAPs). The said NOC was issued as per the Regulations and Article 17(c) of the Hague Convention on the Protection of Children and Cooperation in respect of Inter-Country Adoption, 1993.

The Family Court rejected the application mainly on the ground that the prospective PAPs never appeared before the Court. The High Court noted: “Under sub-section (7) of Section 59, the application for adoption has to be filed in the manner provided in the Adoption Regulations. The present application has been filed in accordance with law as per Regulation 12  of the Regulations. Therefore, it was a case where the Family Court should have allowed the application for adoption.” Also, the PAPs appeared before the High Court and the amicus curiae interacted with them. Also, it was considered, in accordance with the decision in Laxmi Kant Pandey v. Union of India, 1985 Supp SCC 701, whether any PAPs were available within India; but PAPs could be found.

Accordingly, the Court directed that the child be given in adoption to the PAPs. CARA was directed to complete the formality regarding passport and visa and shall do the needful as required under Regulation 18 of the Regulations. Before parting with the case, the court recorded appreciation for the valuable assistance of the Amicus Curiae Shashank Thakur, Advocate. [Sarbjanik Vikas Vahini v. Baruffaldi Enrico Baruffaldi Danilo, 2019 SCC OnLine Chh 43, decided on 17-05-2019]