Updated: July 3, 2021 9:03:10 pm
In a judgment that holds special significance for the orphaned children of Covid-19 victims, the Nagpur bench of the Bombay High Court has set aside a lower court verdict denying relatives of a girl child the right to adopt her. The High Court said the Juvenile Justice (Care and Protection of Children) Act, 2015, clearly allows adoption by relatives specified under the law.
The HC ruling on June 30 came on a revision application filed by two couples, biological parents of a girl child and the prospective adoptive parents, challenging the verdict by District Judge – 1 of Yavatmal that had rejected a plea to allow the adoption.
The biological parents, Manoj (42) and Rajshree Patil (39) from Wardha and the prospective adoptive parents, Sumedh (42) and Nisha Thamke (42) from Yavatmal, had moved the application.
District Judge – 1, Yavatmal had rejected the applicants’ plea under the provisions of the JJ Act, 2015 and Adoption Regulations, 2017 framed under the said Act on the ground that since the child in the present case is 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.
Petitioners’ counsel Ira Khisti submitted that the lower court had committed an error in taking an extremely strict view of applicability of the JJ Act, 2015. The HC bench comprising Justice Manish Pitale had appointed senior lawyer Firdous Mirza as amicus curiae to assist the court.
Mirza submitted a detailed note saying that if the provisions of the JJ Act, 2015 were compared to the earlier enactment of 2000, it becomes evident that in the 2015 law various new provisions had been enacted, thereby broadening the scope of legislation.
Mirza referred to Section 56(2) of the JJ Act, 2015 pertaining to adoption of a child from a relative by another relative, Regulation 2(4) of the Regulations of 2017 pertaining to Child Adoption Resource Information and Guidance System, Regulation 4 of the said Regulations, stating that child of a relative shall be eligible for adoption, Regulation 51 pertaining to in-country relative adoptions and Regulation 55 providing for the legal procedure for prospective adoptive parents, who intend to adopt child of a relative.
He also submitted that the lower court was not justified in referring to the judgment of the Punjab and Haryana High Court in the case of Jasmine Kaur v. Union of India and others, because the petitioner there was adopted under the Hindu Adoption and Maintenance Act, 1956 to whom the procedure contemplated under JJ Act, 2015 and Regulations of 2017 could not be applied.
Mirza also pointed out that the lower court’s interpretation of judgments of Kerala and Karnataka High Courts was also similar to its observations about Punjab and Haryana HC order.
“A perusal of section 2(52) of the JJ Act, 2015 shows that the term “relative” in relation to a child for the purpose of adoption under the said Act has been specified and limited to paternal uncle or aunt, a maternal uncle or aunt or paternal grandparent or maternal grandparent. “Child” is specifically defined in section 2(12) of the JJ Act, 2015 as a person who has not completed 18 years of age. Section 56(2) of the JJ Act, 2015 specifically states that adoption of a child from a relative by another relative irrespective of religion can be made as per the provisions of the said Act and Adoption Regulations framed by the Authority,” the court said.
It added, “Therefore, a perusal of the provisions of JJ Act, 2015 shows that an elaborate procedure is laid down and contemplated for adoption of a child by relatives, who are also specified under the said enactment. 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 step-parents would not have been provided. ”
“In the present case, the child is sought to be adopted by relatives, who being the maternal uncle and aunt of the child, are clearly covered in the definition of ‘relative’ under section 2(52) of the JJ Act, 2015,” the court said.
“In view of the above, the impugned order is quashed and set aside. The court below is directed to consider the application afresh, filed by the revision applicants as the biological parents and prospective adoptive parents on merits. The court below shall dispose of the application submitted by the revision applicants as expeditiously as possible. Hence, the revision application stands partly allowed and disposed of accordingly, ” the bench said.
On the significance of the HC verdict, Mirza told The Indian Express, “…Hundreds of children have become orphans in the Covid-19 pandemic, losing one or both parents. The verdict has paved the way for their smooth adoption by relatives.”
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