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Right to adopt and to be adopted as a fundamental Right – or in alternative guide lines enabling adoption of children by persons irrespective of caste, creed , religion etc., – Muslim board objected to it as Muslim personal law not recognized the adoption – Apex court held that Justice Juvenile Act and Rules governs the adoptions irrespective of religion, caste and creed like Special marriage Act – No separate guideline requires – for declaration as a constitutional right , it is not the right time as it should be achieved only by the consent of all faiths and feelings and is only possible when the common civil code is possible and by these observation closed the writ = SHABNAM HASHMI … PETITIONER(S) VERSUS UNION OF INDIA & ORS. … RESPONDENT (S) = 2014 (Feb.Part)judis.nic.in/supremecourt/filename=41234

Right to adopt and to be adopted as a fundamental Right – or in alternative guide lines enabling adoption of children by persons irrespective of caste, creed , religion etc.,  – Muslim board objected to it as Muslim  personal law not recognized the adoption – Apex court held that Justice Juvenile Act and Rules governs the adoptions irrespective of religion, caste and creed like Special marriage Act – No separate guideline requires – for declaration as a constitutional right , it is not the right time as it should be achieved only by the consent of all faiths and feelings and is only possible when the common civil code is possible and by these observation closed the writ =

Recognition of the right to adopt and to be adopted as  a  fundamental

right under Part-III of the Constitution  is  the  vision  scripted  by  the

public spirited individual who has moved this Court under Article 32 of  the

Constitution.  

There is an alternative prayer requesting the  Court  to  lay

down  optional  guidelines  enabling  adoption  of   children   by   persons

irrespective of religion, caste, creed etc.  and further for a direction  to

the respondent Union of India to enact an optional law the  prime  focus  of

which is the child with considerations like  religion  etc.  taking  a  hind

seat. =

 

The decision of this Court in Lakshmi Kant Pandey (supra)  is  a  high

watermark in the development of the  law  relating  to  adoption. 

Dealing

with inter-country adoptions, elaborate guidelines had  been  laid  by  this

Court to protect and further the interest of the child. 

The  said  norms   have   received   statutory

recognition on being notified by the Central Govt. under Rule 33 (2) of  the

Juvenile Justice (Care and Protection  of  Children)  Rules,  2007  and  are

today in  force  throughout  the  country,  having  also  been  adopted  and

notified by several states under the Rules framed by the states in  exercise

of the Rule making power under Section 68 of the JJ Act, 2000.

The JJ Act, 2000, however did not define ‘adoption’ and it is only  by

the amendment of 2006 that the meaning thereof came to be expressed  in  the

following terms:

 

      “2(aa)-“adoption” means the process through which the adopted child is

      permanently separated from  his  biological  parents  and  become  the

      legitimate  child  of  his  adoptive  parents  with  all  the  rights,

      privileges and responsibilities that are attached to the relationship”

In fact, Section 41 of the JJ Act, 2000 was substantially  amended  in

2006 and for the first time the responsibility of  giving  in  adoption  was

cast upon the Court which was defined by the JJ Rules, 2007 to mean a  civil

court having jurisdiction in matters of adoption and guardianship  including

the court of the district judge, family courts and  the  city  civil  court. 

Rules 33(3)  and  33(4)  of  the  JJ  Rules,  2007  contain  elaborate

provisions regulating pre-adoption procedure  i.e.  for  declaring  a  child

legally  free  for  adoption.  

The  Rules  also  provide  for  foster   care

(including pre-adoption foster care) of such children who cannot  be  placed

in adoption & lays down criteria for selection of families for foster  care,

for sponsorship and for being looked after  by  an  aftercare  organisation.

Whatever the Rules  do  not  provide  for   are  supplemented  by  the  CARA

guidelines of 2011 which additionally provide  measures  for  post  adoption

follow up and maintenance of data of adoptions.

Way back on 15th May, 2006 the Union in its  counter  affidavit  had

informed  the  Court  that  prospective  parents,  irrespective   of   their

religious background, are free to access  the  provisions  of  the  Act  for

adoption  of  children  after  following  the  procedure  prescribed.  

the  JJ  Act,  2000  is  a secular law enabling any person, irrespective of the religion he  professes,

to take a child in adoption.  It is akin to the Special Marriage  Act  1954,

which enables any person living in India to  get  married  under  that  Act,

irrespective of the religion he follows.

All India Muslim Personal Law Board (hereinafter  referred  to  as

‘the Board’) which has been allowed to intervene in the  present  proceeding

has filed a detailed written submission wherein it has been  contended  that

under the JJ Act, 2000 adoption is only one of the methods contemplated  for

taking care of a child in need of care and protection and  that  Section  41

explicitly recognizes foster care,  sponsorship  and  being  look  after  by

after-care organizations as other/ alternative modes of taking  care  of  an

abandoned/surrendered child. 

The  Board

contends that  the  “Kafala”  system  which  is  recognized  by  the  United

Nation’s Convention of the Rights of the Child under Article  20(3)  is  one

of the alternate system of child care contemplated by the JJ Act,  2000  and

therefore a direction should be issued to all the Child  Welfare  Committees

to keep in mind and follow the principles of Islamic Law before declaring  a

muslim child available for adoption under  Section  41(5)  of  the  JJ  Act,

2000.

The Act does not mandate any compulsive  action  by

any prospective parent leaving such person with  the  liberty  of  accessing

the provisions of the Act, if he so desires.  

Such a person is  always  free

to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the  personal  law applicable to him.  To us, the Act is a small  step  in  reaching  the  goal

enshrined by Article 44 of the Constitution.  Personal beliefs  and  faiths,

though must be honoured, cannot dictate the operation of the  provisions  of

an enabling statute. 

 

2014 (Feb.Part)judis.nic.in/supremecourt/filename=41234

P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 470 OF 2005
SHABNAM HASHMI … PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. … RESPONDENT (S)

J U D G M E N T
RANJAN GOGOI, J.

1. Recognition of the right to adopt and to be adopted as a fundamental
right under Part-III of the Constitution is the vision scripted by the
public spirited individual who has moved this Court under Article 32 of the
Constitution. There is an alternative prayer requesting the Court to lay
down optional guidelines enabling adoption of children by persons
irrespective of religion, caste, creed etc. and further for a direction to
the respondent Union of India to enact an optional law the prime focus of
which is the child with considerations like religion etc. taking a hind
seat.

2. The aforesaid alternative prayer made in the writ petition appears to
have been substantially fructified by the march that has taken place in
this sphere of law, gently nudged by the judicial verdict in Lakshmi Kant
Pandey Vs. Union of India[1] and the supplemental, if not consequential,
legislative innovations in the shape of the Juvenile Justice (Care And
Protection of Children) Act, 2000 as amended in 2006 (hereinafter for short
‘the JJ Act, 2000) as also The Juvenile Justice (Care and Protection of
Children) Rules promulgated in the year 2007 (hereinafter for short ‘the JJ
Rules, 2007’).

3. The alternative prayer made in the writ petition may be conveniently
dealt with at the outset.

The decision of this Court in Lakshmi Kant Pandey (supra) is a high
watermark in the development of the law relating to adoption. Dealing
with inter-country adoptions, elaborate guidelines had been laid by this
Court to protect and further the interest of the child. A regulatory body,
i.e., Central Adoption Resource Agency (for short ‘CARA’) was recommended
for creation and accordingly set up by the Government of India in the year
1989. Since then, the said body has been playing a pivotal role, laying
down norms both substantive and procedural, in the matter of inter as well
as in country adoptions. The said norms have received statutory
recognition on being notified by the Central Govt. under Rule 33 (2) of the
Juvenile Justice (Care and Protection of Children) Rules, 2007 and are
today in force throughout the country, having also been adopted and
notified by several states under the Rules framed by the states in exercise
of the Rule making power under Section 68 of the JJ Act, 2000.

4. A brief outline of the statutory developments in the concerned sphere
may now be sketched.

In stark contrast to the provisions of the JJ Act, 2000 in force as on
date, the Juvenile Justice Act, 1986 (hereinafter for short ‘the JJ Act,
1986’) dealt with only “neglected” and “delinquent juveniles”. While the
provisions of the 1986 Act dealing with delinquent juveniles are not
relevant for the present, all that was contemplated for a ‘neglected
juvenile’ is custody in a juvenile home or an order placing such a juvenile
under the care of a parent, guardian or other person who was willing to
ensure his good behaviour during the period of observation as fixed by the
Juvenile Welfare Board. The JJ Act, 2000 introduced a separate chapter
i.e. Chapter IV under the head ‘Rehabilitation and Social Reintegration’
for a child in need of care and protection. Such rehabilitation and social
reintegration was to be carried out alternatively by adoption or foster
care or sponsorship or by sending the child to an after-care organization.
Section 41 contemplates adoption though it makes it clear that the primary
responsibility for providing care and protection to a child is his
immediate family. Sections 42, 43 and 44 of the JJ Act, 2000 deals with
alternative methods of rehabilitation namely, foster care, sponsorship and
being looked after by an after-care organisation.

5. The JJ Act, 2000, however did not define ‘adoption’ and it is only by
the amendment of 2006 that the meaning thereof came to be expressed in the
following terms:

“2(aa)-“adoption” means the process through which the adopted child is
permanently separated from his biological parents and become the
legitimate child of his adoptive parents with all the rights,
privileges and responsibilities that are attached to the relationship”
6. In fact, Section 41 of the JJ Act, 2000 was substantially amended in
2006 and for the first time the responsibility of giving in adoption was
cast upon the Court which was defined by the JJ Rules, 2007 to mean a civil
court having jurisdiction in matters of adoption and guardianship including
the court of the district judge, family courts and the city civil court.
[Rule 33 (5)] Substantial changes were made in the other sub-sections of
Section 41 of the JJ Act, 2000. The CARA, as an institution, received
statutory recognition and so did the guidelines framed by it and notified
by the Central Govt. [Section 41(3)].

7. In exercise of the rule making power vested by Section 68 of the JJ
Act, 2000, the JJ Rules, 2007 have been enacted. Chapter V of the said
Rules deal with rehabilitation and social reintegration. Under Rule 33(2)
guidelines issued by the CARA, as notified by the Central Government under
Section 41 (3) of the JJ Act, 2000, were made applicable to all matters
relating to adoption. It appears that pursuant to the JJ Rules, 2007 and
in exercise of the rule making power vested by the JJ Act, 2000 most of the
States have followed suit and adopted the guidelines issued by CARA making
the same applicable in the matter of adoption within the territorial
boundaries of the concerned State.

Rules 33(3) and 33(4) of the JJ Rules, 2007 contain elaborate
provisions regulating pre-adoption procedure i.e. for declaring a child
legally free for adoption. The Rules also provide for foster care
(including pre-adoption foster care) of such children who cannot be placed
in adoption & lays down criteria for selection of families for foster care,
for sponsorship and for being looked after by an aftercare organisation.
Whatever the Rules do not provide for are supplemented by the CARA
guidelines of 2011 which additionally provide measures for post adoption
follow up and maintenance of data of adoptions.

8. It will now be relevant to take note of the stand of the Union of
India. Way back on 15th May, 2006 the Union in its counter affidavit had
informed the Court that prospective parents, irrespective of their
religious background, are free to access the provisions of the Act for
adoption of children after following the procedure prescribed. The
progress on the ground as laid before the Court by the Union of India
through the Ministry of Women and Child Development (respondent No. 3
herein) may also be noticed at this stage. The Union in its written
submission before the Court has highlighted that at the end of the calendar
year 2013 Child Welfare Committees (CWC) are presently functioning in a
total of 619 districts of the country whereas State Adoption Resource
Agencies (SARA) has been set up in 26 States/Union Territories; Adoption
Recommendation Committees (ARCs) have been constituted in 18 States/Union
Territories whereas the number of recognized adoption organisations in the
country are 395. According to the Union the number of reported adoptions
in the country from January, 2013 to September, 2013 was 19884 out of which
1712 cases are of inter-country adoption. The third respondent has also
drawn the attention of the Court that notwithstanding the time schedule
specified in the guidelines of 2011 as well as in the JJ Rules, 2007 there
is undue delay in processing of adoption cases at the level of Child
Welfare Committees (CWS), the Adoption Recommendation Committees (ARCs) as
well as the concerned courts.

9. In the light of the aforesaid developments, the petitioner in his
written submission before the Court, admits that the JJ Act, 2000 is a
secular law enabling any person, irrespective of the religion he professes,
to take a child in adoption. It is akin to the Special Marriage Act 1954,
which enables any person living in India to get married under that Act,
irrespective of the religion he follows. JJA 2000 with regard to adoption
is an enabling optional gender-just law, it is submitted. In the written
arguments filed on behalf of the petitioner it has also been stated that in
view of the enactment of the JJ Act, 2000 and the Amending Act of 2006 the
prayers made in the writ petition with regard to guidelines to enable and
facilitate adoption of children by persons irrespective of religion, caste,
creed etc. stands satisfactorily answered and that a direction be made by
this Court to all States, Union Territories and authorities under the JJ
Act, 2000 to implement the provisions of Section 41 of the Act and to
follow the CARA guidelines as notified.

10. The All India Muslim Personal Law Board (hereinafter referred to as
‘the Board’) which has been allowed to intervene in the present proceeding
has filed a detailed written submission wherein it has been contended that
under the JJ Act, 2000 adoption is only one of the methods contemplated for
taking care of a child in need of care and protection and that Section 41
explicitly recognizes foster care, sponsorship and being look after by
after-care organizations as other/ alternative modes of taking care of an
abandoned/surrendered child. It is contended that Islamic Law does not
recognize an adopted child to be at par with a biological child. According
to the Board, Islamic Law professes what is known as the “Kafala” system
under which the child is placed under a ‘Kafil’ who provides for the well
being of the child including financial support and thus is legally allowed
to take care of the child though the child remains the true descendant of
his biological parents and not that of the “adoptive” parents. The Board
contends that the “Kafala” system which is recognized by the United
Nation’s Convention of the Rights of the Child under Article 20(3) is one
of the alternate system of child care contemplated by the JJ Act, 2000 and
therefore a direction should be issued to all the Child Welfare Committees
to keep in mind and follow the principles of Islamic Law before declaring a
muslim child available for adoption under Section 41(5) of the JJ Act,
2000.

11. The JJ Act, 2000, as amended, is an enabling legislation that gives a
prospective parent the option of adopting an eligible child by following
the procedure prescribed by the Act, Rules and the CARA guidelines, as
notified under the Act. The Act does not mandate any compulsive action by
any prospective parent leaving such person with the liberty of accessing
the provisions of the Act, if he so desires. Such a person is always free
to adopt or choose not to do so and,
instead, follow what he comprehends to be the dictates of the personal law
applicable to him. To us, the Act is a small step in reaching the goal
enshrined by Article 44 of the Constitution. Personal beliefs and faiths,
though must be honoured, cannot dictate the operation of the provisions of
an enabling statute. At the cost of repetition we would like to say that
an optional legislation that does not contain an unavoidable imperative
cannot be stultified by principles of personal law which, however, would
always continue to govern any person who chooses to so submit himself until
such time that the vision of a uniform Civil Code is achieved. The same
can only happen by the collective decision of the generation(s) to come to
sink conflicting faiths and beliefs that are still active as on date.

12. The writ petitioner has also prayed for a declaration that the right
of a child to be adopted and that of the prospective parents to adopt be
declared a fundamental right under Article 21 of the Constitution.
Reliance is placed in this regard on the views of the Bombay and Kerala
High Courts in In re: Manuel Theodore D’souza[2] and Philips Alfred Malvin
Vs. Y.J.Gonsalvis & Ors.[3] respectively. The Board objects to such a
declaration on the grounds already been noticed, namely, that Muslim
Personal Law does not recognize adoption though it does not prohibit a
childless couple from taking care and protecting a child with material and
emotional support.

13. Even though no serious or substantial debate has been made on behalf
of the petitioner on the issue, abundant literature including the holy
scripts have been placed before the Court by the Board in support of its
contention, noted above. Though enriched by the lengthy discourse laid
before us, we do not think it necessary to go into any of the issues
raised. The Fundamental Rights embodied in Part-III of the Constitution
constitute the basic human rights which inhere in every person and such
other rights which are fundamental to the dignity and well being of
citizens. While it is correct that the dimensions and perspectives of the
meaning and content of fundamental rights are in a process of constant
evolution as is bound to happen in a vibrant democracy where the mind is
always free, elevation of the right to adopt or to be adopted to the status
of a Fundamental Right, in our considered view, will have to await a
dissipation of the conflicting thought processes in this sphere of
practices and belief prevailing in the country. The legislature which is
better equipped to comprehend the mental preparedness of the entire
citizenry to think unitedly on the issue has expressed its view, for the
present, by the enactment of the JJ Act 2000 and the same must receive due
respect. Conflicting view points prevailing between different communities,
as on date, on the subject makes the vision contemplated by Article 44 of
the Constitution i.e. a Uniform Civil Code a goal yet to be fully reached
and the Court is reminded of the anxiety expressed by it earlier with
regard to the necessity to maintain restraint. All these impel us to take
the view that the present is not an appropriate time and stage where the
right to adopt and the right to be adopted can be raised to the status of a
fundamental right and/or to understand such a right to be encompassed by
Article 21 of the Constitution. In this regard we would like to observe
that the decisions of the Bombay High Court in Manuel Theodore D’souza
(supra) and the Kerala High Court in Philips Alfred Malvin (supra) can be
best understood to have been rendered in the facts of the respective cases.
While the larger question i.e. qua Fundamental Rights was not directly in
issue before the Kerala High Court, in Manuel Theodore D’souza (supra) the
right to adopt was consistent with the canonical law applicable to the
parties who were Christians by faith. We hardly need to reiterate the well
settled principles of judicial restraint, the fundamental of which requires
the Court not to deal with issues of Constitutional interpretation unless
such an exercise is but unavoidable.

14. Consequently, the writ petition is disposed of in terms of our
directions and observations made above.
……………………………CJI.
[P. SATHASIVAM]
………………………………J.
[RANJAN GOGOI]
………….……………………J.
[SHIVA KIRTI SINGH]
NEW DELHI,
FEBRUARY 19, 2014.
———————–
[1] (1984) 2 SCC 244
[2] (2000) 3 BomCR 244
[3] AIR 1999 Kerala 187

———————–
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