Author: Yash Arjariya, II year of B.A.,LL.B.(Hons.) from Hidayatullah National Law University
Introduction
Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter JJ Act) is a statutory enactment for the purpose of consolidation of laws in relation to children “who are found to be in conflict in law”[1] and children for children who are in need of care[2]. The act operates for the well being and social re-integration of both classes of children. However, for the purpose of this analytical work, we shall restrict the scope to adoption of orphaned, surrendered etc. children under the act. The work shall account for the capacity of adoptive parents, procedure of adoption, role of court & effects of adoption as provided by the act.
Further, the work shall also try to differentiate between provisions and nature of adoption under Hindu Adoptions and Maintenance Act and JJ Act by putting light on statutory provisions and also by referencing to landmark judicial authorities in this regard.
Capacity of Adoptive Parents
Sec 57 of the JJ act lays down the eligibility of prospective adoptive parents applying for adoption under the act,
1. The adoptive parents must be mentally sane, financially sound and physically fit.
2. Where the applicant is married, the consent of both the spouses is necessary.
3. The act also provides for adoption by a bachelor or divorced person but such adoption shall be subject to guidelines and rules framed by CARA.
4. A single male is barred from adopting a female child
5. Prospective parents must also fulfil any additional criteria as laid by CARA.
Procedure for Adoption
1. Individuals willing to adopt an orphaned or abandoned or surrendered child must make an application to a Specialised Adoption Agency.
2. The Specialised Adoption Agency will then scrutinise the application and prepare a report on prospective parents, declaring them eligible or ineligible for adoption.
3. If the individuals are found eligible for valid adoption, the agency will file an application in the court for obtaining the valid adoption order.
4. Adoptive Parents shall receive the valid adoption order and custody order from the court. Also, the authority will reserve the right to trace the well being and proress of child with the adoptive parents.
Role of Court
The act entrusts upon the court of law that before issuing the valid adoption order in an application filed before it, the court should also be considerate of the fact that adoption is for the well being and betterment of the child[3], while also being accommodative of the child’s age and wishes of the child and most importantly it is imperative for the court to ensure that neither prospective adoptive parents and nor the specialised adoption agency has received or given any consideration in any manner (cash, kind etc.) for the adoption.[4]
Further, the court is under obligation to dispose such application with a period of 2 months from filing and such proceedings should be held in camera.
Adoption of two Child of same gender- Harmonious construction between HAMA and JJ Act
In Re: Adoption of Payal at Sharinee Vinay Pathak and Sonika Pathak[5], If couple who already have a biological kid can adopt a child who is of the same gender as their existing child was the question before the Bombay High Court. When adopting a harmonic interpretation between the JJ Act and the HAMA, the court determined that the JJ Act would take precedence over general legislation since it specifies special procedures for the adoption of a small category of people—abandoned, relinquished, or orphaned children (i.e., HAMA). In light of the fact that the JJ Act does not restrict parents' capacity to adopt a kid of the same gender as their current child, the court concluded that a couple may adopt a child of the same gender as their existing child.
The act is an exclusive and specific authority which is resorted in cases of orphaned or surrendered children. Also, the as per sec 56(4), all the inter country adoptions are governed and regulated by this piece of legislation.
Difference between Adoption under HAMA and JJ ACT
● The Juvenile Justice act allows for the adoption of child whose age is upto 18 years while HAMA only allows for adoption of children who are not more than 15 years[6].
● Under HAMA more than one child of one gender cannot be adopted[7], i.e., adoptive parents cannot adopt two children of same gender. Additionally, HAMA prohibits adoptive parents from choosing a child of same gender as their biological child. However, under JJ act, three children of any gender may be adopted. There is no bar to adoption of children on the basis of gender of already existing biological or adoptive children.
● JJ Act is secular law in nature and has territorial applicability, i.e., people of any religion can adopt child under this piece of legislation whereas HAMA is only applicable to Hindus.
●A single male can adopt a girl child under HAMA[8] subject to certain conditions whereas a girl child cannot be adopted by single male under JJ act.[9]
Scope of Adoption
From a reading of Section 1(4) of the JJ Act, 2015, it is clear that the Act provides for the adoption of children in need of care and protection and children in conflict with law and lays down various standards and conditions under which their welfare, including adoption, is regulated. Insofar as direct adoptions are concerned, direct adoptions from the biological parents of the child are permitted under Section 56(2) of the JJ Act, 2015.
In Rajwinder Kaur & Anr vs. Central Adoption Resource Agency[10],
According to the Delhi High Court, if a child is adopted in accordance with HAMA rules, it is not necessary to use the rules of the JJ Act, 2015 to ensure that the adoption is legal. Without assistance from anybody else, without acknowledgement from CARA or any governmental authority, an adoption carried out in accordance with the conditions outlined in HAMA would be significant. In this way, the JJ Act of 2015 and CARA Guidelines of 2017 would not be relevant in relation to adoptions under HAMA, whether domestic or international, direct or indirect.
In any event, this does not mean that Hindus governed by HAMA are ineligible to pursue adoptions under the JJ Act of 2015.Even persons regulated by HAMA have the option of enrolling a child in adoption under the JJ Act, 2015, according to enabling provision Section 56(2).
The Supreme Court in Smt. Anokha v. The State of Rajasthan & Ors[11] has held that for inter-country direct adoptions, the JJ Act, 2015 would not be applicable as the children are not orphans, abandoned or surrendered children.
Further, in Sivarama K. & Ors. v. State of Kerala & Ors[12], Kerala High Court held that if the child was not an orphan, abandoned or surrendered child, the JJ Act, 2015 would have no applicability.
Conclusion
The article has clearly manifested the procedural pre-requisites, capacity requirement and role of court as laid down by JJ Act. Further, the article has adequately differentiated the scope and application of JJ act and HAMA, whilst enumerating the nature of legislation, difference in applicability and harmonious construction between both. The article has also referenced to several major authorities by various HC’s and SC which have certainly delineated the adoption under JJ act in lucid manner.
[1] Juvenile Justice (Care and Protection of Children) Act, State of objects and reasons, No. 2,Acts of Parliament, 2016 (India). [2] Id. [3] Id. § 61(1)(a). [4] Id. § 61(1)(c). [5] 2010 (1) Bom CR 434 [6] Hindu Adoptions and Maintenance Act, § 10(iv), No. 78, Acts of Parliament, 1956 (India). [7] Id. § 11(i) & 11(ii). [8] Id. § 11(iii). [9] Supra note 1 at §57(4). [10] W.P. (C) 279/2019 [11] Civil Appeal No. 9631 of 2003 [12] 2020 (1) Kerala Law Journal 641